Vĕra Jourová is the European Commission’s Vice-President-designate with the portfolio for Values and Transparency – the values, that is, of rule of law, fundamental rights and especially freedom of expression and media freedoms. Her hearing before the European Parliament was on Monday. What she plans could well change the character of political debate and strategies in Malta.
What attracted attention here were her answers to Roberta Metsola (EPP). Jourová said she had promised the Caruana Galizia family that she would closely follow the police investigation and that she would throw her weight into protecting journalists at risk. She also criticised passport sales and promised to do whatever was in her power to bring them under closer scrutiny.
But what she has in mind for Europe in general may well have greater impact on Malta. Taking particular aim at a single member State is always tricky. Proposing a mechanism that will routinely lead to greater scrutiny of all member States is easier to put in place and paves the way for regular evaluations and calls for compliance.
Briefly, the Commission plans to institutionalise a comprehensive rule-of-law mechanism that annually reviews four pillars of democracy and fundamental rights. One is the Constitutional balance of powers. Second is the independence of the judiciary. Third come corruption and actions against it. Finally, there are media freedoms and freedom of expression, including digital threats to both.
None of this is aimed specifically at Malta. But I don’t need to belabour the point that all four issues have been points of concern in domestic politics as well as in Malta’s relations with the Council of Europe, Reporters Without Borders and other international organisations.
Now, the Commission will be involved and Jourová couldn’t have spelled out the stakes more clearly. She said a rule-of-law culture was indispensable for the integrity of the single market.
The single market is the bottom line and raison d’être of the EU. It’s to protect the single market that the EU prefers a no-deal Brexit to a compromise with Boris Johnson’s government, even though, in the short-term, no deal will have worse consequences for Ireland and other member states.
If (Vĕra) Jourová decides she needs an early example to show she means business, the government’s spinners will find it difficult to throw doubt on her integrity
Nor was Jourová exaggerating in saying the rule of law is a necessary condition of the single market. It’s not a real market if you can’t rely on fairness in how the rules are implemented and adjudicated. It’s not a real market if the people in power make irreversible changes that makes their decisions more difficult to challenge – because they install their own people to control the civil service, the media and judiciary, while intimidating any challenge coming from any of those three institutions.
And, yet, that is the pattern that is discerned – by academic country experts, not just the political opposition – in countries like Hungary and Poland. By strengthening the stranglehold of one political party over the State, the process is reversing the very transformations that were a condition of joining the EU.
So when Jourová talks about threats to fundamental values and the single market, she’s not talking about Brussels ‘interfering’ in domestic politics. She’s saying the basic contract signed, on accession to the EU, is being broken. So the Commission is seeking no new rights in establishing a mechanism to secure compliance.
It’s important to see that, for the Commission, this is an existential issue for the EU. Because that shows the likelihood that it will follow through – no doubt, with some waffle and caution and slowness, but also with a seriousness that amounts to something more significant than homilies about democracy.
Likewise, when it comes to media freedoms and digital threats. In response to Metsola, Jourová denounced SLAPP actions as shameful. She said she was prepared to countenance not only legislation but also legal aid for journalists when they are intimidated financially.
Once more, however, the agenda is not driven by any particular member state. It’s a general predicament in which Europe finds itself, together with the rest of the world.
The predicament is structured by two elements. First, the political model of winning elections is changing. Rather than appealing to the moderate centre, some political parties base their strategy on mobilising and enraging their radical base.
Second, they use organised online armies to demotivate and intimidate voters they cannot win over. Disinformation, fake news and incitement are key. In several instances, there is reason to believe that the very conditions of free elections are being violated (not least because foreign secret services may be involved).
The Commission is proposing to combat this by having routine consultation with all stakeholders. The scrutiny will include mapping violations against the media and supporting journalists under threat.
Although the rule-of-law mechanism will include all member States, it will have two particular effects on Maltese politics. In the immediate future, it will make a difference to the public inquiry into the assassination of Daphne Caruana Galizia. A narrow view of the inquiry’s remit would clash with the Commission’s official understanding of rule of law. The Commission goes beyond system failures of the State’s administrative apparatus. Jourová made clear she includes systemic disinformation and intimidation of the media by politicians and their proxies.
So, if the board of inquiry decides to stick to a narrow remit, we could find ourselves, next summer, with a report that does not address the Commission’s benchmarks. If Jourová decides she needs an early example to show she means business, the government’s spinners will find it difficult to throw doubt on her integrity as they have done with the Council of Europe’s Pieter Omtzigt.
The second effect will be more long-lasting. So far, the domestic debates on rule-of-law issues have been framed, by the Labour government, as essentially partisan. All its critics, it claims, are motivated by partisan bile. Even international organisations (like Reporters Without Borders or PEN) have had flawed motives – having been either duped by Maltese sources or else been driven by their own hidden agenda.
The Commission’s annual review cycle will now weigh in as a kind of arbiter. It won’t be decisive, just as its other reviews (on the economy or environment) are subject to contestations and foot-dragging. But the review cycle will mark a change. For one thing, the Commission will be consulting some of the very international organisations that have hitherto been dismissed as driven by malice.
In the last decade, Maltese politics has undergone profound transformations – in the means of persuasion, in the financial stakes and in organisation. The balance of power between ruling political parties and civil society shifted decisively in favour of the former. The Commission’s rule-of-law mechanism won’t reverse all that. But it should redress some of the balance. Our governments will have to learn new tricks.