When the Venice Commission published its opinion on the Maltese constitutional structure, Joseph Muscat’s government was forced to admit that the current system was inadequate. It was laid bare, undeniably, for all to see: Malta is falling short of the international obligations it signed up to when it joined the Council of Europe within the first year of our independence. Our own government admitted Malta is breaching the rights of its citizens, and doing very little about it.
It is an embarrassing situation for Malta, an embarrassment that Muscat tried to remedy by pointing to insufficient reforms, and the classical tactic of blaming the Opposition for abuses spearheaded by this Labour government.
The Constitution hasn’t changed much since the last Nationalist administration, bar some minor reforms. So why is it that scrutiny is befalling Malta now, and not years ago? Unlike what Muscat would have us think, this is not because of criticism that has been levelled against his autocratic administration; it is because of his autocratic administration. The abuses have gone too far and for far too long, and Europe is taking notice.
At the end of the day, the Constitution is a written piece of paper. If its purpose is to provide a framework for our country’s government and supply the basic rules to make it possible, it can only go so far by itself. It needs people, so-called “guards”, to occupy its offices and realise its principles. The difference between autocracies and democracies is that in the latter, an important question is asked: Quis custodiet ipsos custodes, or “who will guard the guards”?
This important doctrine refers to the checks valued by every nation worthy of calling itself a democracy. For every ounce of power granted to someone, there must be a balance to counter abuses and hold that person to account for breaching their responsibility.
What we have seen from Muscat is the complete opposite. Instead of a leadership that respects the Constitution and strengthens its underlying principles, we have witnessed its incessant and malicious exploitation.
No document can replace the need for leaders to wield their power with integrity
Inch by inch, constraints on the Office of the Prime Minister have been emasculated and even more power centralised. Instead of separating functions of government, Muscat has kept roles conflated, breaching the legal with the political, undermining the independence and the efficacy of our institutions to suit his needs.
No document can replace the need for leaders to wield their power with integrity.
The perspicacious Giovanni Bonello, arguably Malta’s most respected legal scholar and former Strasbourg judge, framed this problem elegantly: “Its main weakness is that it is a Constitution written by gentlemen for gentlemen, and anything meant for gentlemen has the habit of being taken advantage of when it falls into the hands of scoundrels.”
In this respect, it is clear that the Labour government has failed us.
Our Constitution is there to serve each and every Maltese citizen, guaranteeing our human rights and ensuring government works for the people, not vice-versa. Citizens should be given priority. The obverse has happened, and the Maltese people are condemned to facing the consequences for decades to come.
Offices like that of the Attorney General remain fundamentally flawed for many reasons which were all brought to light by the Venice Commission. The position of the AG is such that it is both the public prosecutor and the government’s lawyer, creating an obvious conflict of interest when the government ought to be taken to court. And what if the AG himself fails to do his duty to investigate crimes? The tragedy is that nobody can question his authority.
This is the polar opposite of what the Constitution intends, protecting the powerful and the corrupt to the detriment of the ordinary citizen. Regrettably, Malta has found itself in the situation where basic rights and freedoms are granted only – if at all – at the benevolence of a paternalistic State. One by one, each institution is subverted to work for corrupt officials who occupy positions paid for by the taxpayer.
How does the government respond to these accusations? By proposing “reforms” that barely make the situation better, dragging Malta down well below its expected standard. The United Kingdom, our constitutional parents, had remedied the problem of the dual-role of the AG over 30 years ago. In Malta, we are expected to satisfy ourselves with red herrings and scraps thrown at us by the Justice Minister while fundamental principles of our Constitution are disregarded and turned on their head.
In the 1980s, then Prime Minister Dom Mintoff suspended the Constitutional Court, because he was ambivalent to the idea of human rights restraining his grasp on power. Muscat has taken a less dramatic but more insidious approach, by filling the judiciary with lawyers closely tied to the Labour Party. Even if our systems are remedied by meaningful reform, our courts would probably not survive a legal challenge in the European Court of Human Rights, according to respected legal experts, both local and international.
The judicial system, our democracy, and ultimately Malta’s name have all been tarnished for years to come. Ultimately, it is the honest citizen that will suffer. The challenges that lie ahead are considerable but they are not insurmountable. The work that has already been done has already gone a long way to ensure that Europe is watching. We must now work harder than ever before to reverse the damage caused by this Labour government.
This is a Times of Malta print opinion piece
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