Tag: separation of powers

Categories
Rule of Law

Majority Rules Not Ok

Malta’s Minister for Transport, Infrastructure & Capital Projects has gone on record saying something to the effect that “majority rule is higher than the rule of law”. One cannot stop underlining the dangers that lie behind this kind of statement. To begin with, this is a blatant show of ignorance of the laws that bind us. It flies in the face of hundreds of years of philosophical treatises on social contract, on constitutions, and on the basic principles that underlie our law-based societies.

Rousseau (The Social Contract), Locke (Second Treatise on Government), Hume (Of the Original Contract) and Madison (The Federalist Papers No. 10) – that is a tiny roll call of the kind of people who tried to get their heads around the problem of just representation in society. At the second rally organised by CSN after Daphne’s assassination I had spoken of the people as sovereign – the ultimate depositaries of the powers of the land. That was not a concept I pulled out of thin air. Our legal systems are all intended to crystallise the way that ultimate power (of the people) is lent (and we emphasise lent) to different branches of the state in order that they may govern. To govern in the name of the people, for the people, by the people. Again, not another catchphrase.

Later developments to the philosophers’ ideas came in the form of modern liberal constitutions such as those begotten by the American and French revolutions. A representative government, a separation of powers and a basic set of rights that was above the power of the legislature. From the Magna Carta onwards in fact, there was the gradual realisation that a sovereign people would still subject itself voluntarily to regulation by a set of fundamental truths that would be inalienable (could not be taken away) even by those who have been entrusted with creating laws for the day to day functioning of society.

“We hold these truths to be self-evident…” is how the second paragraph of the American Declaration of Independence begins. The colonies were protesting the abuse of the representative power by their King and in that document they justified their right to “dissolve the political bands which have connected them with another”. Among the first of the self-evident truths was The First Amendment which precluded the lawmakers from enacting laws which abridged freedom of speech, the freedom of press and the freedom of religious belief.

The basic rules would be guaranteed by other branches of the state. Alexander Hamilton outlined this in The Federalist Papers No. 78, when he spoke of the Court being the ultimate interpreter of the meaning of the Constitution. In his words, the Court would stand “between the people and the legislature, to keep the latter within the limits assigned to their authority … A constitution is in fact, and must be regarded by judges as fundamental law.. the Constitution ought to be preferred to the [legislature’s] statute, and the intention of the people to the intention of their agents.”.

Modern constitutions are replete with checks and balances of this sort. The point of the checks and balances is that tyranny is avoided. The point is that the abuse of power by a part over the whole is prevented.

The role of a ‘majority’ in our constitution starts and stops with the election of our representatives in parliament that lead to the selection of a government entrusted with executive power for a short mandate. The next day of an election the concept of ‘majority vote’ is technically redundant except when applied within the rules and regulations of parliamentary votes for the enactment of laws.

Above all, the government of the day as an executive – and every other branch of the state – have no business with using the concept of “majority rule” to trump all other concepts of legal accountability. To do so would be to usurp the very concept of control of power and representation. Ian Borg’s concept of majority rule trumping the rule of law is an abomination to the concept of democratic representation. The same can be said of Alfred Sant’s declarations in the European Parliament where the idea that “the people have voted” seems to have been bandied about as some sort of general absolution for any irregularities committed by the agents of government that was confirmed at the polls.

Whether willfully or through ignorance of the law, these statements become a declaration of war on liberal democracy. They represent a dangerous step in the current situation where the rule of law is withering before our very own eyes.

They must and shall be countered.

The people united can never be defeated.

Categories
Mediawatch Politics

Malta Post-Franco (Reprise)

Discussing the Franco Debono situation over lunch yesterday, we joked that his statement of “I will not vote with Labour” (as reported by MaltaToday) meant just that. Admittedly our considerations were more in jest than anything else but we considered the possibility that Franco was using his very literal form of reasoning in the sense that “not voting with Labour” does not necessarily mean voting otherwise.

I must admit that given the information earlier that morning I too was surprised by the outcome of the final vote. Surprised to a certain extent though. While I had not seen Franco’s vote coming I was fully aware of the consequences of this vote in the sense that there would be no great collapsing of government, no tumbling down of the temples of power and that the only “victim” of this latest fit would be Carm Mifsud Bonnici.

Incidentally we had also joked that since the motion of confidence had concerned a portfolio that was no longer in CMB’s remit then technically there was nothing to resign from once the vote passed. I know, it’s no laughing matter but the way things were going laughter did seem to be the best medicine. The whole body politic has been in the thrall of Franco Debono’s voting antics for quite some time now. As we pointed out in an earlier series of posts (Malta Post Franco I-IV), Franco is doomed to be a temporal blip in political history.

Sure a record might be broken here and there – such as the forcing of a resignation of a minister (within living memory) but the long-term impact of Franco on the Maltese political landscape was always intrinsically linked with the one-seat majority that the nationalist party enjoys (ah, the cruelty of language) in parliament. The content of Franco’s agenda (or whatever screen he has put up to disguise any personal ambitions and compensation for suffering) is all watered down when seen from a long-term perspective.

In two matters Franco has been unintentionally and unwittingly useful. Firstly his protracted theatricals have served to exposed one major weakness of our representative democracy. The obsession with guaranteeing a bi-partisan approach and discarding all other models (such as one that encourages proportional representation) has meant for some time now that the JPO’s and Debonos of this world expose the stark reality of “election or bust” oriented parties without a backbone. This is a weakness that no “premio maggioranza” would solve , rather, it would only serve to entrench the two parties further in their twisted machinations.

The second useful matter concerns the Labour party. Franco’s bluff and no bluff has actually uncovered the Labour party’s brash “power or nothing” approach that discards any conventional value-driven approach while grafting the ugliest versions of the nationalist party to what it believes to be its own benefit. Valueless politics giving way to full blown marketing was already bad enough. Now we have Labour with it’s catastrophic approach. Muscat’s Labour has shot itself in the foot so many times it probably lacks any limbs.

There is a third, important conclusion that one should add. It is the ugly reflection about the “general public”. A large swathe of it – or the particularly active part of it – have proven to be ridiculously hopeful of the promises that Franco seems to have bandied about. His pet subjects were manna to the ears of the disgruntled – particularly conspiracy theories peppered with mantras about arrogance, cliques and friends of friends. His tales of hurt and suffering – culminating in the infamously comic “broken chair in Court” episode could only strike home if the audience were (how can I put it) less informed.

To conclude, the merry go round that risks being extended once Franco misses out on the latest redistribution of power has exposed huge fault lines in our appreciation of how a basic democracy should function. Separation of powers,  judicial authority, parliamentary privileges, public security and rights were all melded together in one big bouillabaisse of political convenience.

Franco’s minutes in the political playing field are now counted. We should have moved on from gazing at Franco months ago, yet we (and the press have much to blame for this) are still at the mercy of his idea of a guessing game. The real politics that will affect out lives for the coming five to ten years lie far away from Franco’s hand. Sadly, nobody seems to be bothered to find out what what those politics and policies really are or will be.

…

from Malta Post-Franco (II)

To get at Austin Gatt, Joe Saliba, Carm Mifsud Bonnici, Richard Cachia Caruana and others Franco Debono decided that the best option was to threaten to topple government. He had had enough waiting in the sidelines for his opinions and ideas to be heard and for a place in the decision making clique that counts. So he refused to play.

Categories
Politics

PM.pn – auctioning off the prime minister

I’m afraid that I may be a little late on this one since I was still lounging by the pool when this “initiative” made the headlines. To be quite honest when I first heard of it I thought it was a joke – a funny “tickle me under the arms” affair that goes by the name of satire these days. Could it be that the lads at Bis-Serjetà pulled off another “The Onion” inspired headline?  Sadly my first hunch was wrong and the Partit Nazzjonalista was really offering its followers a chance to “become PM for a day” (and win an iPad 3 to boot).  Here is how the Independent reported the possible winnings (PN launches “Be PM for a day”):

The winner of this contest will be handed the opportunity to propose one particular idea or project, as well as naming his or her own members of Cabinet and members of parliament from their acquaintances. The winner will spend a whole day with the Prime Minister on Tuesday, 19 June during which he or she will get to meet the press, tour the corridors of Castille, and discuss policy ideas with Dr Gonzi.

Now this idea of “reaching out” to the public by one of our two political parties smacks of “wrong” in so many ways that I risk missing out on some of them if I do not turn them into a “list”. In these days when marketing and snazzy websites might trump content many people might think that this move is actually “good”, we beg to differ and here is why:

1. PN (a party) – PM (a head of government)

The first and most obvious objection to this crass exercise of X Factor meets Castille is the fact that a party initiative, kicking off from a party website is auctioning off the role of a government position. Not just any government position but THE BIG KAHUNA. It’s the PM seat for chrissakes and they are not even playing make believe. For it would be one thing if the winner would “fake” being Prime Minister and play along in a sort of re-enactment with his friends and the press… you know a sort of King Carnival but for politics. But it’s another thing when our Prime Minister is actually part and parcel of the prize. Which brings me to point two…

2. Does not PM Gonzi have better things to do?

After all what with all these ridiculous motions by the opposition, an economy to hold steady and a government with that perilous one seat majority you would expect a Prime Minister to spend his time in better ways than prancing around with a make believe duplicate addressing press releases about fancy projects from the citizen. What does he expect them to come up with? Something fantastical? A tunnel to Gozo perhaps?

3. The Miseducation of Joe Citizen

Once we’re on this play acting business, even if we were prepared to play along with the party game then there is the not too irrelevant business of education. If we really are trying to get something out of this exercise how about not drumming home the idea that the PM is such a powerful man that he names “his or her own members of Cabinet and members of parliament from their acquaintances”. I mean for crying out loud do they not even stop and read what they propose? A PM choosing members of parliament? From their acquaintances? What shall we call it? “Il-parlament tal-ħbieb (tal=ħbieb) tal-Prim Ministru”? A prime minister does not choose members of parliament – the people do. That’s lesson number one in basic democratic skills innit?

4. Tour the corridors of Castille and discuss policy

Seriously. I was under the impression that Castille had its open days during the nuits blanches that are thrown every now and then. Anybody could get to walk into Castille and shake Dr Gonzi’s hand. As for policy – this is running a bit thin isn’t it? I mean is this the best “listening” the PN can do?

The “Be a PM for a day” is an exercise that would be more fitting in Azerbaijan than in Malta. Yet it is happening and the danger is that it is actually being taken seriously by the fourth estate and the voters who are meant to be more demanding on our politicians and their parties. What next? Shall we bring Simon Cowell in to evaluate the contestants? After all guys like Christian Peregin might have a conflict of interest selecting the winner while also interviewing them on the day they got to play PM.

Strength and resilience. Lord knows that we’re going to need much of those till election time.

 

Categories
Rubriques

I.M. Jack – The March Hare contd.

2. The Law is an Ass

Or is it? One effect of the multiplication of immediately available information has been the massive impact that this has had on the interaction between the demos and the institutional framework that represents them. By this I mean that what is commonly referred to as “the people” tends to give more and more input on the processes that exist in a democratic environment. I would hazard to state that for a very long time one major imperfection of democracy functioned to its advantage and longevity. This imperfection was the practical impossibility of involving everyone and everything in every single decision that needed to be taken within the framework of separation of powers.

A new advert by the Guardian called “Three Little Pigs” (see below) turns out to be a perfect illustration of what I mean here. The majority of information reaching us comes from the traditional media (or in some cases citizen journalists) and then these “facts” that have been reported are given the demo-treatment. Reactions – indignation, satisfaction, summary judgements etc – might even influence the follow-up to a news item. All the while the usual machinery of the state might be interacting with a particular news item : a crime? a sporting achievement? a public blunder by a public person? an injustice to a citizen?

Where does this take us? I believe that the current shift is crucial to the redefinition of a major democratic paradigm. It’s as if you could check in on your accountant/lawyer’s/doctor’s work on a daily basis and you suddenly tried to influence how he or she goes about the job. The rules and structures behind democratic processes are what binds us all and keeps us a step away from chaos. If, for example, we suddenly all had a say about how a day in the court should run we would steamroll over procedures that have been developed to guarantee and safeguard a multiplicity of rights. The same goes with reporting in newspapers, decisions on governance and governability and more. The danger is further confounded when public judgements are made on the basis of political expediency or allegiance. Reason and social mores are put aside so long as we can shoot from the hip about the “inadequacy of legislation” – forgetting that there is a process behind the formation of such legislation that guarantees stability.

3. Owen Bonnici and Students’ House

This bit of news in the Times got my blog fingers itching and is a perfect example of the cavalier attitude that the modern band of politicians have towards the guarantees of the law and more.

Labour MP Owen Bonnici has asked for an investigation by the Public Accounts Committee or the Auditor-General into whether government rules were broken when parts of Students’ House at the University were handed to the University Students’ Council, which then rented them out for commercial purposes.

Now I admit that having been KSU President I might have a considerable advantage over Owen in this one but the story jars on many a point. Let’s begin with the basic. The most basic. KSU is an autonomous organisation – one of the oldest in Malta having been founded back in 1901. The good operation of the Students’ Council requires that it operates free from outside pressure and that includes the administrative organs of the University of Malta, not to mention the government. I hate to go down this line because it plays into the retro-fetish of nationalist enthusiasts but one of the greatest coups to safaguard KSU’s (at the time SRC’s) autonomy occurred in the 70’s under – you guessed it – Mr Mintoff.

At the time SRC ran the house now known as the NSTS Building in Saint Paul’s and Mintoff wanted to get his hands on this prize property at a time when most Uni assets were up for grabs. What happened next was that a foundation was created (the NSTF) with the SRC as one of its members. Technically speaking NSTF is still a branch of KSU with KSU still participating actively in the management of the foundation. The foundation kept the property an arms breath away from the meddling government at the time. Why do I mention all this? It is important to understand the issue of autonomy of the student body and that Dar l-Istudent on Campus is for all intents and purposes a KSU managed property (I hesitate to say owned).

Which brings me to Owen and his “reporting”. What public accounts? What auditor-general? Would Owen be so kind as to ask the same gentlemen to initiate an investigation on the Labour and Nationalist parties in order to examine whether their management of financial affairs is tip-top? Why doesn’t he? Owen’s insistence is a bit like inviting Alexander Ball over to Malta to protect us from the evil French. We all know what happened for the next 264 years.

So there are suspicions about the current committee’s handling of tenders? Deal with it in the appropriate forum. Sure the latest generation of party lackeys on both sides of the spectrum will make a meal out of it as they have tended to do since the PLPN colleges   planted more and more idiots from their school of bipartisan thought. What needs to be done in this case is to gather a movement of students who will vote the suspect batch out of the representative organ and then presumably replace them with persons who can properly manage students’ house. If the students do not turn out to vote in that manner then there is nobody else to blame.

Bonnici’s act simply threatens the very autonomy of the student council and its rights of administration and management that were acquired over a long time after a series of tough battles by the predecessors of the current executive. It’s a wrong move that can only benefit Bonnici’s exposure but one that the students will ultimately end up regretting: if the PAC or Auditor-General follow through on the absurd request that is.