Few outside the leadership of the two political parties have an opinion on the new law abolishing the requirement that both sides of parliament agree on who should be given the job of checking they are complying with rules of ethical behaviour. The new law allows the government to fill a vacancy without needing anyone else’s approval. It removes the opposition from the arrangement. So, people figure, it is for the opposition to complain about this. Since most people are not looking to be hired as ethics commissioners, most people think this is not their problem.
Perhaps the more switched on would ask if the government was breaking any laws. No, it is not. The rules on how to hire an ethics commissioner are part of ordinary law and while the government enjoys a parliamentary majority, they can change ordinary laws at will.
They may not be breaking a law by changing it. But, in ordinary life, people should be able to understand why their conduct is improper.
Consider a teenager who is instructed to be back home before midnight. When they come in well clear of curfew, they’re told that, while they were out, the rules changed and they are now an hour later than the new curfew, which is why they are getting punished.
Consider a goalkeeper playing in 1991 finding, while facing a red card, that, during the match they were playing, FIFA banned goalies from handling back passes. I am sorry I cannot give more recent examples of FIFA changing the rules of the game but I have been distracted by puberty.
The examples I am putting forward here are meant to make the point that only tyrants change the rules of the game in the middle of a match and that behaviour is inherently unfair. Robert Abela’s government is not introducing some great thought-through reform in our constitutional framework. They are changing the rules so they can appoint their choice for standards commissioner because the way the game works now would not let them get their way. There is hardly a more appropriate situation to use the cliché of shifting goalposts.
To avoid these situations, countries like ours that follow the example of the newly- freed Thirteen Colonies write their rules of the game in a basic law that cannot be changed by a government alone. We call that “the Constitution”. But the term ‘constitution’ means more than the document in which the rules are written. Constitution means the rules we agree to play politics in, which may or may not be written in a law, which may or may not be “entrenched”, require a wider consensus than the will of the government to change them.
Consider Britain. The British pride themselves on never having had to write a constitution requiring some special consensus to change it. They can restrain themselves from unfair conduct without having a law that would stop them, thank you very much. That doesn’t mean they don’t have a constitution. It means that there is a historical understanding that, however sovereign the power of parliament is to change laws at any time, the rules of the game are not changed merely to accommodate the needs of the government of the day.
I am saying all this to suggest that, though the rule about the need for consensus to appoint the standards commissioner is not written in the “Constitution”, it still is part of the rules of the game and, therefore, a part of the constitution of the running of this country.
There’s only one law we need to know of: when the Prince is thirsty, fetch the claret- Manuel Delia
Is it difficult in this polity of two, and only two, sides for both sides to agree on a referee? Yes, I suppose, it is harder than the power the prime minister enjoys to appoint any unqualified idiot to most posts in his government. But it is not impossible. The auditor general and the ombudsman are hired by cross-party consensus and that rule is written in the Constitution with a capital C. For the last 40 years, the position has been filled by cross-party consensus. Alfred Sant and Eddie Fenech Adami agreed on names. Joseph Muscat and Lawrence Gonzi agreed on names. Joseph Muscat and Simon Busuttil agreed on names. They were never each other’s greatest fans but, with a lot of effort, patience and goodwill, they picked people they agreed on.
Why can’t Abela do it? Because he is a pathetically weak leader. He is unable to mobilise support in his own party for the nomination of anyone the opposition might agree with. He feels diminished by the suggestion that the unencumbered expression of his will, even on rare occasions such as the need to replace a standards commissioner every five years, needs be diluted with the opinion of anyone else. He is afraid that anyone who doesn’t exclusively owe their position to him might exercise their lawful duty to cause him embarrassment by denouncing the unethical behaviour of him or his colleagues.
Like a petty young Caesar pulled away from his own circuses by the nagging of senators calling him to his responsibilities, he pronounces himself God, his will unquestionable, his laws incontestable.
If you think this is an exaggeration, it is because you think you shouldn’t need to care how the incumbent of an obscure office of state is chosen since whatever method is adopted, you will never be hired or be hiring.
Perhaps.
What this episode should teach you, however, is that if at any time you find yourself in disagreement with this government, convinced the law and reasonableness are on your side, Abela will think nothing of using his power to change the law to submit your reason to his will. In that country, we don’t need a constitution because there’s only one law we need to know of: when the Prince is thirsty, fetch the claret.