Otto von Bismarck is supposed to have said there are two things you do not want the public to see being made: sausages and laws. If you’re the squeamish sort you may want to look away now.
Parliament adopted “historic” changes to our constitution this week. Robert Abela and Adrian Delia congratulated themselves profusely for their achievement. They made changes to the way the judiciary is appointed transferring that power from the executive to a complex balancing act between the judiciary itself (that now shortlists candidates together with the chief justice), the presidency (that picks the final choice) and the legislature (that will henceforth be choosing the president and the chief justice).
The solution is far from a best practice but it’s a significant improvement on the colonial anachronism we had that allowed Joseph Muscat to turn the judiciary into a subset of the Labour Party.
How did they get there? I won’t bore you with too much history except to say these changes were long overdue. In 2016 parliament approved another “historic” reform in judicial appointments. It was a dud. The Council of Europe thought so. The Venice Commission thought so. The European Commission said that whatever the Venice Commission said was right. And the European Court of Justice was asked to rule on whether the 2016 “reform” was even compliant with basic standards of EU membership.
In spite of the fact that Owen Bonnici and Peter Grech squandered two years defending the 2016 non-changes, Abela’s government was not confident it would defeat NGO Repubblika’s case in Luxembourg. So, they threw in the towel and accepted they needed a proper law that would ensure judicial independence.
But even Abela’s government did all it could to adopt a law that would effectively change nothing. They first told the Venice Commission they would have the cabinet of ministers make the final choice when new judges need to be chosen. They were shot down. Then they said they’d leave the job to the president.
But as long as the prime minister chooses the president, the change would be purely symbolic. Again, the Venice Commission shot the proposal down.
Then they said they would give the parliamentary opposition two opportunities to agree with the government’s choice of president after which they would choose their own. Again, the proposal was shot down.
After so many attempts at getting away with immaterial change, the pressure from European institutions that kept a constant and open dialogue with Repubblika and other civil society organisations, forced the government to make the changes that were needed. The pressure was applied in the form of meetings and correspondence between Edward Zammit Lewis and the Venice Commission, a back and forth that was kept up until a proper ‘solution’ was found.
Now consider the debate domestically. Except for an introductory meeting made mostly of small talk, the government held no material discussion with local civil society.
This country has made history but it doesn’t know what the story is
To get to the Justice Ministry in Valletta, Repubblika had to communicate through Strasbourg and Brussels. No White Paper was published for public consultation. No input from anyone outside the justice ministry was welcome. The parliamentary bills were published a fortnight or so before the final vote on them was due. No time was allocated for any material discussion on the drafting.
The ‘deal’ between government and opposition was brokered at a tête-à-tête between Abela and Delia, a handful of minutes before the voting was due. From the reporting of the parliamentary debate it is clear that material changes were made to the text of the bills as a result of that meeting.
Parliamentarians voted and unanimously approved the new text but none of them had seen it. No MP is entirely certain what is in the “historic” changes to the country’s basic law although they know they voted to approve them.
At the time of writing, the final act of parliament has not yet been published. This country has made history but it doesn’t know what the story is.
Consider that the Venice Commission has forced us to make these changes because in this respect our constitution was not in conformity with contemporary democratic norms. This wasn’t a cosmetic change. It was a fundamental shift in our institutional design. And yet the amateurishness, the superficiality, the pettiness with which the government and opposition handled the change is mind-blowing.
The point is that such as it is, a reform was accomplished mostly due to a civil society shocked into self-awareness by the killing of Daphne Caruana Galizia, a Council of Europe parliamentary assembly alerted to the democratic breakdown in Malta through the devastatingly rational and articulate explanations given to it by Matthew, Andrew and Paul Caruana Galizia within days of their mother’s death, and a European Commission threatening sanctions on Malta if things don’t change quickly.
But the judiciary is just one part, and a relatively minor part of our constitutional problem. Our democracy is failing because our political parties are unregulated, their internal elections are outside the scrutiny of the state and open to corrupt practices, they hog free speech by employing journalists and pollute the media landscape, they are funded from backhanders on the back of public contracts delivered or promised.
Our democracy is failing because our electoral system limits the electorate’s choice, forces clientelism, increases candidates’ vulnerability to corruption, encourages parochialism and deters competent people.
Our democracy is failing because our parliament is a ceremonial rubber stamp, that votes on laws without reading them, that provides no scrutiny to government and that even in times of crisis such as what this country experienced over the last two years proves to be as good as useless.
Can we achieve material change in our legislative branch of government as we have secured change in the judiciary? It’s going to be harder. There are no EU institutions that can exert pressure here because in this respect European countries write their own rules.
It will be up to us, the people, the free press, civil society, to demand material change. We may be squeamish. But we need to get busy working at the sausage machine of our democracy.