At a meeting with the Venice Commission this week, I complained that the government refused to properly discuss institutional reform or even share a copy of their proposals before sending them to Strasbourg.
At this, a member of the commission asked: what debate is there in Malta on institutional reform? How deeply are the local press covering the issue?
My guess is they were driving at the point that if the government acts in secrecy over such important reforms, then it must be because the public is not being loud enough when demanding the government give account of themselves.
I shared that thought with Edward Warrington who teaches public policy at the University. He put things into context for me.
Our constitution was designed in the years leading to independence in 1964. Since then, significant changes were made to it in 1974 (when Malta became a republic), in 1986 (with the great settlement for political transition), in the years 1992 to 1997 (when political parties worked together on a clean-up) and in 2003, when without changing much of what the constitution actually said, its character was transformed as the country shared its sovereignty with the rest of the EU.
Except perhaps for the big political debate about EU membership, all the other stages of constitutional maturity were negotiated in smoke-filled rooms between the two main political parties.
Edward Warrington warned that another change is going on which he described as “constitutional meddling by stealth”.
During the last seven years, the constitution itself was left largely undisturbed but the constitutional make-up of the country is being tempered with little debate, using ordinary legislation and simple parliamentary majorities.
The cloak and dagger approach to the changes being asked for by the Venice Commission fits into this debate-dodging approach to constitution-making. Why would a government that blows its trumpets for waking up in the morning be so secretive about constitutional design?
In our relationship with the state we have three levels of engagement. The first level is composed of our rights which we are born with and which belong to us as individuals and universally to all individuals, whether the state wants to respect them or not. Those rights are inalienable: they cannot be taken away by policy or by law or by executive actions.
The second level is made of our entitlements that are handed down to us by law, but they can also be taken away from us by law. We are not born with a right to an old age pension. The law gives us entitlement to it when and if we fit in objective criteria. For whatever reason that may cause a shift in policy – for example, people live longer or the money runs out – that entitlement can be taken away.
The third level is made up of the claims we as individuals make of the state: things we demand not because they’re ours by right, or we’re entitled to under some objective criteria, but things we expect because we want them.
A member of the Venice Commission asked: what debate is there in Malta on institutional reform?- Manuel Delia
A practical example: we all have the right to enjoy our property. If for some public purpose our property needs to be taken away from us, we are entitled to fair compensation.
We may claim that a field in the countryside that our dead grandma left us in her will should be schemed to build our country villa on, but that neither means we have a right to build that villa nor that we’re entitled to be allowed to build it.
But rights, entitlements and claims are conflated in a society which confuses universal rights that apply equally to all with benefits that we think we can extract from ‘the crown’ or ‘the republic’ and cashed.
This is why our national discourse ignores the right to life of black people in distress at sea. We draw no monetary benefit from preserving their right and we separate in our minds the enjoyment of our own rights (which we price in euro and cents) and the application of those rights universally. We do not connect the rights of the least of these our brethren with our own and we see no risk to ourselves when the rights of others are breached.
Our relationship with power is a slightly more sophisticated version of the native islanders who show the colonists the way to the gold mines in exchange for mirrors, combs and trinkets. We ignore the rights of others as we cash in on the government’s generosity with our own resources: permits to build higher while casting everyone else in shadow, permits to build further as the commons are carved out and I’m given a disproportionate share.
This transactional policymaking is at the heart of our unwritten constitution as a community that is smaller than the sum of its parts living a regulated rat race fuelled by greed and lubricated by a political class that indulges our basest instincts.
In this context, a national conversation about strengthening institutions in order to detect, interrupt and punish corruption would be incongruent. A debate that looks to address how laws must be changed to frustrate cupidity would bleed into a discussion on how we are to change our civic sense, our sense of duty to each other, our shared responsibility to preserve the commons in trust for future generations and our enlightened egoism of fighting and defending the basic rights of the most vulnerable.
The question we’re really being asked is whether we want to live in a community of shared interests or would we rather elbow everyone else and make our own way ahead with a little help from the constituency minister?
In its opacity and secrecy, the government has made its own assessment about what we would want.
If we’re asked how independent we want our judges to be, our answer may very well be another question: would their independence help us claim what we have no right to?
Never mind then.