The crisis in Malta has led to the government’s collapse while it holds the presidency of the EU Council. The impact on the functioning of the EU will be significant. In Malta, Parliament has been dissolved and we are headed for snap elections in less than a month’s time.
But this crisis is not one that can be solved by elections. Because this is not a crisis of leadership, or even a political crisis. It is a constitutional crisis, a crisis of the rule of law. It is a crisis of democracy.
This crisis did not start when senior members of the government were exposed by the Panama Papers to have secret companies in Panama, double blinded behind secret trusts in New Zealand, with the seeming intention of hiding questionable activities. It did not even start when the Prime Minister protected those people and kept them in government, or even when the police failed to open investigations. This crisis did not start with the (true or false) allegations of criminality by the Prime Minister and his colleagues put forward by Nationalist blogger Daphne Caruana Galizia.
This crisis started much, much before that. It started in 1964, when the British gave us an Independence Constitution that was deeply and severely flawed. (They are busy messing up only themselves these days, but 50+ years later we’re still dealing with the mess they left here.)
In essence, we are facing multiple constitutional and institutional failures of serious proportions and a veritable collapse of the rule of law. They have been long in coming.
We have a State where only the police may initiate criminal investigations and prosecutions, but institutionally, the Police Commissioner serves at the sole pleasure of the Prime Minister, and the police are politically controlled by the government, so police investigations against the government or without its consent are impossible.
In our system, the police may prosecute you on the government’s orders for political reasons. Even if the police do investigate something related to the government (with its consent) their findings can have no credibility as they are essentially investigating their own boss under the control of their own boss.
Compare that to the situation in the US, where Hillary Clinton was investigated by the FBI (the police) when Barack Obama was in power, while the FBI launched investigations into Trump’s links with Russia on him coming to power. That is only possible because in the US, the police are functionally and institutionally independent from the administration. Those are checks and balances working in a democracy. Checks and balances that do not exist in Malta.
We have a State where the prime minister alone appoints judges, leading to the Prime Minister recently appointing the deputy leader of his own political party as an ‘impartial’ judge. We have seen politically tainted appointments to the judiciary for decades.
We have a State where the Constitutional Court has, in its constant rulings since the 1980s, utterly and blandly refused to annul any unconstitutional law, and has entirely abdicated its role as guardian of the Constitution. If the court finds a law unconstitutional, it only disapplies it to the case before it; it does not strike down that law.
This means that laws found to be unconstitutional are not annulled but continue to apply fully as law until the Parliament may or may not eventually decide to repeal them. If you are faced with a law already declared unconstitutional, your only remedy is to suffer it and go through the entire legal system of appeals (again) to have the Constitutional Court finally disapply the law in your specific case too. Then that law will again be applied to the next person. Our Constitutional Court, followed by our other courts, has made a mockery of constitutional and judicial control.
A democracy requires institutional separation of powers, the rule of law, proper judicial control, the equality of citizens before the law and before the public administration. In Malta we have none of those things
Compare this again to the US – when Trump adopted his unconstitutional Muslim travel ban, the courts neutralised it within days. He adopted a new order, and again within just two days it was struck down as unconstitutional. That is what judicial and constitutional control look like when they function. By contrast, the Maltese courts have not annulled even one single unconstitutional law in over 40 years.
We have a State where under the Constitution, every constitutional organ or body is controlled by the government of the day (which appoints most of its members and leadership), from the Broadcasting Authority to the Public Service Commission, to the Commission Against Corruption, to the Attorney General and Auditor General. Not a single one of these bodies has the personal, functional or institutional independence to function free from major political interference.
We have a State where even the Planning Authority is under politically appointed leadership and control, so getting any building permit as a citizen is a political matter or a political favour. I won’t even go into the ODZ issue.
We have a State where key authorities, like the Competition Authority, simply do not function at all. The Competition Authority in Malta is not an independent authority but a division within a government ministry, so to take any enforcement decision against a company it needs political consent, and no minister wants to sanction companies because that will lose them votes. They do not run investigations (apart from laughable cases like Federated Mills, which was so obviously politically motivated and so flawed and devoid of any content even resembling competition law that it only further proves my point).
The result is that our markets are rife with abuses of competition, price rigging, market partitioning, illegal exclusivity contracts, cartelisation, monopolies and duopolies, supported by illegal exclusionary practices that go completely unchallenged. A fundamental, critical and core State function in any democracy –antitrust – does not even exist, and most of us have barely even heard of it. Then we complain we’re stuck with a choice of just two retail banks or two mobile operators or two cable operators.
Competition is weak, there is no level playing field, and costs for businesses are high because we are getting fleeced by institutionalised monopolies, duopolies or by companies rigging markets at every corner.
We have a State where we are unable to usefully vote for the political party of our choice. Instead, we effectively have a ridiculous and anti-democratic 16.7 per cent electoral threshold for any small party to get into Parliament. This means no third party can ever get into Parliament and that any vote for them is no more than a ‘wasted’ protest vote. We can usefully only vote between the big two.
Malta is the only country in Europe with only two parties in Parliament; it is no accident, it is by design. And it is anti-democratic. The system is so ridiculously rigged that we, as citizens, cannot usefully create new political parties that stand any chance of being elected alone, and we cannot usefully and meaningfully vote for the parties of our own choosing, in violation of two of our core democratic rights.
We have a State where any government entering into power can liberally and immediately replace all permanent secretaries in the civil service, by even political apparatchiks if it desires, so that even the civil service has no existence independent from government. They are ‘permanent’ secretaries exactly because this is not supposed to happen, but they are ‘permanent’ in name only.
The entire civil service retains no independence (and all appointments, promotions, transfers, and so forth become an extension of the political will of the party in power). The government can (and does) even appoints ‘persons of trust’ specifically to public procurement roles in public bodies, just to make sure that all the granting of public contracts is under political control and ministerial discretion.
The illusion of fair process in procurement does not even exist. The public’s impression is that if you support the ‘wrong’ political party, you will not get a job with the government and you will not get public contracts. Period.
We have a State where the entire political system is dominated by clientelism, nepotism, cronyism and overt trading in influence (at its worst, public power openly being abused to trade political favours directly for votes). And there is no single public institution that will act against this. Former Prime Minister Alfred Sant identified the problem but called it by the wrong name - the “power of incumbency”. It is not. It is trading in influence, a crime, and it is so ‘normal’ in Malta that the media barely even bother to report it.
The ability to vote every five years does not make us a democracy. At most, it makes us a demagoguery, like Algeria. A democracy requires much more. It requires institutional separation of powers, the rule of law, proper judicial control, the equality of citizens before the law and before the public administration.
In Malta we have none of those things. We are in crisis today not because of one politician or another. We are in crisis because the rule of law is failing, our democracy is failing, and because no government, blue or red, over the past 50 years has ever tackled these serious issues.
And no government alone can. Solving most of these issues requires electoral or constitutional change. That requires the consent of both the big parties. These problems can only be fixed if both tribes come together to act in the interest of the nation.
All men and women of good will today in Malta, whatever their political background, must speak up in favour of the rule of law, in favour of the separation of powers, in favour of checks and balances, in favour of stronger independent institutions, in favour of democracy. Because ultimately this crisis is so big, so deeply embedded in our political history, perhaps so hopeless, that it can only be solved by all of us working together.
However tense and hostile our political climate has become, the brutal, perhaps ironic, reality is that we will get nowhere until both parties work together to strengthen our democracy, our institutions and the rule of law.
Get your representatives and candidates to know that it matters to you. We need good people on all sides, in all parties, to have a chance to move forward, and to one day, maybe, live, or have our children live, in a normal country. In a democracy.
Dr Ken Mifsud Bonnici is an international constitutional and institutional lawyer, specialised in public governance and the rule of law. He has advised many national governments, European institutions, UN bodies and Fortune 500 companies. He is currently a member of the European Commission’s body of overall legal advisers. The views expressed here are entirely his own.
Independent journalism costs money. Support Times of Malta for the price of a coffee.Support Us