Archive for 2011

Historical Facts and Freedom of Expression

A diplomatic crisis of sorts has erupted between Turkey and France over the latter's decision to proscribe criminal sanctions for the rejection or denial of genocide. The new French law, which has been passed through the assembly but not the Senate (as yet) imposes a potential €45,000 fine and/or 1 year imprisonment. The reason why Turkey is so furious is because Turkey rejects that the events that occurred way back in 1915, concerning the massacre of Armenians by the then Ottoman Empire in the Great War, are to be construed as 'genocide'. The Turkish prime minister argues that this is nothing but an electoral ploy by the French president to get the French-Armenian minority vote. 

These restrictions on freedom of speech which are not clear-cut, such as incitement to hatred and violence, are bound to open a can of worms both politically and especially legally. A similar example of dodgy restrictions are those concerning public morals - and rightfully so - because vague concepts such as 'morality' are relative: they change in time and space. 

All free-speech theorists agree that certain forms of speech can lead to some harm and justifications on restrictions in this sense are not controversial, even in a utopian liberal democracy. Yet there is also cause for disagreement on what constitutes 'harm'. Take the case of blasphemy for example. The debate rages on to this very day on whether blasphemy should be censored by the State merely for offending religious sentiment or whether the state should only 'penalise expressions about religious matters which intentionally and severely disturb public order and call for public violence'. (Recommendation 1805(2007) on Blasphemy, religious insults and hate speech against persons on grounds of their religion, the Parliamentary Assembly of the Council of Europe). 

Back to the matter at hand. What harm does revisionist speech (aka 'negationism') cause to a democratic community? The strongest argument against such a form of expression is one based on public order, namely that '[t]he denial or rewriting of...historical fact undermines the values on which the fight against racism and anti-Semitism are based and constitutes a serious threat to public order'. Consequently, such speech is seen as 'incompatible with democracy and human rights because they infringe the rights of others' (Garaudy v France - European Court of Human Rights - 2003-IX DA). Yet the reasoning quoted emerged from a case concerning an outright denial of the Holocaust and was buttressed by a 'proven racist aim'.  

Nonetheless, I fail to see the harm that could possibly emerge from debating, perhaps even denying specific historical events. On the contrary, such punitive laws are only bound to open up legal black-holes. Firstly this would give rise to a situation where the courts have to assess history: something which they are not set up to do, for the task of the court, ultimately, is to dispense justice. [A similar controversy arises when the courts would have to assess the nebulous concept of 'morality']. Can the judge have a final say on what constitutes 'clearly established historical fact'; and how far should this discretion go? Should it also judge upon speculative debate regarding the denomination of the crime (i.e. on whether it constitutes genocide, crimes against humanity, etc)? In Chauvy v France (2004) the ECtHR rightfully argued that:

 ' is an integral part of freedom of expression to seek historical truth and it is not the Court's role to arbitrate the underlying historical issues, which are part of a continuing debate between historians that shapes opinion as to the events which took place and their interpretation'. 

Legal perplexities aside, the political ramifications of such criminal sanctions are also a cause for concern. Driving such discourse underground would only make things worse - providing the unnecessary impetus for extremist ideologues to become more extreme. One of the main purposes of freedom of speech is to do away with state paternalism on issues such as morality and, in this case, what it considers to be historical fact or otherwise. Indeed, the Franco-Turkish diplomatic row is proof of this although I commend Sarkozy's statement that "France does not give lessons to anyone...". 

My conclusion is that this bill was a highly unnecessary and disproportionate measure to curtail certain revisionist speech. Its ramifications on freedom of expression, should it go through, are yet to be determined by the European Court. Rather than proscribe a general criminal sanction on the denial of genocide I would argue that it would be more reasonable to assess, on a case-by-case basis, whether such revisionist speech is maliciously intended to cause racial prejudice or hatred. Otherwise, it would be conferring upon the state authorities a discretion that is arbitrary and wholly uncalled for.  

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The Brussels Failure

Nobody seems to know exactly what the new "fiscal compact" is comprised of and what form it is going to take. Any hope for formal treaty change comprising all 27 EU Member States died with Cameron's "no" so it is most likely that we are going to end up with an intergovernmental agreement amongst the 17 eurozone States and, possibly, other non-eurozone states that may want to join. The legality of this agreement, compact, or whatever it turns out to be, is shaky to say the least.

The idea, however, is to move towards fiscal union, meaning that national budgets and fiscal policies would become 'Europeanised'. This is an odious step for advocates of national sovereignty and a misguided triumph for European federalists. I say misguided because it is a breed of federalism born from intergovernmentalism which, in my opinion, is bound to fail in the long run. This is one of the most basic flaws that emerged from the Brussels Summit on December 8th. The second is that it hasn't done much, it seems, to calm the markets and the credit rating agencies. 

Thirdly, this compact is born from the premise that individual (mostly southern) European states are solely to blame for the crisis. Surely, Greece's fudging of numbers and projections contributed to the euro debt crisis but to say that this is solely Greece's fault (coupled with Spain, Italy, Portugal and Ireland - PIIGS) would also be misguided. It basically leaves out the banks and financial institutions (who also contributed to the crisis) which states like the United Kingdom and Malta shockingly want to protect in the "national interest". 

Fourthly, the idea that states can spend more than they earn and incur deep budget deficits has to end. To this end the compact places a cap on a budget deficit of 0.5% GDP and automatic consequences (penalties) for countries that exceed 3% GDP. Perhaps this would mean that a budget deficit below 0.5% GDP is fine whilst a budget deficit of between 0.5% and 3.0% incurs a warning or possible sanctions. Any budget deficit exceeding 3.0% of GDP would be automatically punished, presumably by the Commission. National budgets will no longer remain sovereign but would now be scrutinised by the Commission and the European Court of Justice. 

This notion of fiscal discipline and budget surplus sounds great on the face of it. However, I fear that deep down such policies would effectively kill off any hope for fair wealth distribution (social democracy) within Europe. By legitimising (constitutionally - as member states are bound to do) the economics of austerity, discipline and punishment, this compact will criminalise expansionary fiscal policy and Keynesian economics. Basically the only outcome is for member states to tax more, slash wages, privatise everything and spend less, thus dismantling the social welfare safety net and with it, any hope for a decent living for those who are not well-off. It is beyond me how certain politicians, who should know better, advocate the protection of major financial institutions over the social protection of ordinary working citizens by opposing measures such as taxes on financial transactions. Perhaps they endorse the concept of "trickle-down" economics even though it is proven to have failed? At least they should thoroughly explain their position and define, credibly and objectively, how a so-called Tobin tax would be detrimental to the economy.

The irony is that I endorse fiscal union and European oversight but not in the manner that is being proposed, largely because it is anti-democratic and completely removed from the general populace. If we are going to have fiscal union we should also demand more democratic institutions such as more powers for the European Parliament; an elected Commission and an elected EU Council President. I feel more and more dejected by Europe if it is going to be run by France, Germany, conservatives, eurosceptics, banks and unelected bureaucrats. The least Europe can do, to ensure its survival, is to give some measure of power to the people rather than simply deny and take away. 

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This is Madness

I believe in the European dream. I believe that it is absolutely essential towards achieving peace, prosperity and cooperation in a continent once ravaged by war and bloodshed. And yes, I also believe that it is beneficial for states like Malta not merely from an economic perspective (the single market) but also because less national sovereignty is likely to translate into enhanced social, consumer, and environmental protection; better access to justice and enforcement of justice; less clientelism, cronyism, nepotism and other such 'isms' - and, above all, a sense of openness towards basic civil liberties and human rights that some forces in this country still want to brand taboo. I believe that a day might come when we shall vote for a local governor and a local legislature to enact local laws and regulations but that this would be merely ancillary to voting for a European president and parliament. I do not fear that day should it ever dawn upon us. Perhaps it shall never come to pass.

Yet, I am not comfortable in the manner we are approaching (at a snail's pace, admittedly) that day. Federalism should not be created inter-governmentally. It is a paradox which makes no sense whatsoever. Federalism should be, above all, democratic and supranational. If countries like the United Kingdom fear Europe than so be it. In fact, it is better for countries such as the UK, that revel in traditionalist-nationalistic pride to leave the Union once and for all. Good riddance I'd say. However, although France and Germany represent (historically, culturally and ideologically) the very heart of the Continent, there is no democracy in giving them carte-blanche to decide what's best for the rest. It simply does not work that way for it reinforces the so-called 'democratic deficit' that has plagued Europe since its conception. As things stand, the purely intergovernmental Franco-German compact, leading to a 'two-speed' Europe, is simply the lesser of two evils. 

I also have deep doubts about the workability of the new fiscal treaty that is being proposed. I agree that fiscal prudence and discipline should be key and especially endorse the notion that countries should not spend more than they have. The constitutionalisation of such measures can work and act as a good incentive for governments but only if it is couched in vague and flexible terms, to at least leave some room for manoeuvre in times of emergency. But I am not so sure whether the German concept of 'discipline' (which is extremely strict) can work everywhere. This would be a huge culture-shock to southern states like Malta where issues like public healthcare and stipends make or break governments. Surely, being restricted to a 0.5% deficit would translate to the erosion of social services, pensions, stipends and free healthcare. These would, at best, be replaced by a system of means-testing and, at worst, gradually abolished. Choosing Heavy-Fuel-Oil because it is cheaper would become the default rule of thumb thus casting aside any long-term scope for proper environmental protection. Basically, politicians would have to master the art of spending less and less in a country like Malta whose major source of income is tourism, financial services and betting. In a perfect world it could, perhaps, discourage flagrant spending in useless capital projects and dissuade the spend-spend-spend rush before general elections. But this is not a perfect world and not all economies are like Germany. It is also hypocritical that many in Europe ridicule, say, Republican presidential candidates for their economic follies (eg cutting spending in times of recession when governments should spend more to incentivise job-creation that lead to more overall wealth) but then pursue the same policy back home to rounds of applause. I believe that such measures would legitimise the austerity-culture that has taken root in Europe and which frankly did nothing to calm the markets and only to stoke the fury of ordinary workers.

Time will tell.        

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Captain Hindsight

Well it looks like my job here is done. Goodbye everyone!
If you're a South Park enthusiast I bet my last cent that you must be pretty familiar with Captain Hindsight. Just in case you do not know, Captain Hindsight is a fictional super-hero in the Trey Parker/Matt Stone mould who is fortunate enough to have, well, the  power of...extraordinary hindsight. Thus, in one example, Captain Hindsight saves the day not by rescuing people trapped in a burning building but by suggesting ways the tragedy could have been averted by placing fire-escapes in the higher floors and by building a reinforced structure on the roof so that a helicopter could have landed on it. When the wisdom is spoken everyone is relieved - the day is saved and everyone can go home. The only catch is...the building is still burning.

Nobody other than Trey Parker and Matt Stone could come up with a more perfect analogy to "oh-what-a-shame-it-was-to-be-associated-with-Ghaddafi-in-the-seventies-and-eightees". Oh yes, what a perfect harmonious country Malta would be if it had absolutely no ties with Libya back then and how the Labour Party would have prospered if it hadn't been so. Yes, I bet today it would have been perceived as a bastion of democracy. Thus did Lawrence Gonzi spake and saved the day.

There seems to be some incy-wincy problems with all of this though. Just to mention a few:

Geographical Proximity

The most obvious link to Ghaddafi is that Valletta, unfortunately for all of us, happens to be a mere 221 miles (356 km) away from Tripoli. That's like, a half-hour flight on a Boeing 747. In fact, it's faster to get to Tripoli than to get to Mellieha from Valletta these days. This leads to an entire mish-mash of perks and goodies such enhanced trade links, market access, migration and migration control, consular relations, etc, etc.

Political Current (Zeitgeist)

Linked to the above point, it would be pretty naive to assume that Malta would be absolutely uninspired with the political movement that spread across the Maghreb and the Arab World in general - the one that ousted monarchs and gave rise to Peoples' Presidents and Brother Leaders instead. The Arab-socialism that peaked in the 60s must have been more in tune with the ideologies of people like Mintoff and KMB who are nationalists at heart (and by nationalists I do not mean PN-Gonzi-Eddie-etc - I mean simply and purely 'nationalism', i.e. Malta l-Ewwel u Qabel Kollox). At the time, this framework of pan-arabism was a better ideological tool in the struggle against colonial rule and becoming an independent and sovereign nation with no-strings-attached than acceding to the Treaty of Rome surely. With hindsight, we now realise that these new Arab Leaders actually turned out to be full-fledged dictators and we wouldn't have known it if Gonzi did not point it out to us.

Cash Cow (Mooo)

Mintoff is renowned for being a manipulative son of a gun and getting his way even with the more esteemed statesmen. I am told that at one point, if it weren't for the millions of dollars (or Liri) poured into Malta's coffers courtesy of Ghaddafi, the entire post-independent civil service of Malta would have collapsed because at the time there just wasn't enough money to go round.


The downside to all this is that perks and favours have to be returned. As the saying goes "it takes two to tango". Another one is "nothing comes for free". Thus the Arabic Language became compulsory in all state schools and Ghaddafi's infamous Green Book a relic of the "IN-YOUR-FACE-REAGAN" enthusiasts of the day. This is Realpolitik and if you come and tell me that the current administration, indeed any administration in the world, bases its entire diplomacy on purely-ethical premises and considerations than you must really be naive. Of course, the once beloved neighbour next door has now become enemy number one. That's the way the cookie crumbles.

The more disturbing aspect of this entire debauchery of historical revisionism is in using a brutal dictator such as Ghaddafi against your political adversary to score political points. It's just as absurd, if not a whiff more revolting, as exploiting a revolution for economic gain (tourism in our case).  But then again, that's political realism served on a platter right there.

Ultimately nobody can tell what the future will hold. Do we know, with absolute certainty that the Jibril and Jalil of today will not become the Ghaddafi of tomorrow? Did we know with absolute certainty that the liberating army in Egypt would hijack an entire revolution as Mark Camilleri so aptly put it? No, we did not. But do not fret. Captain Hindsight will set us right.

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A Victory Against All Odds

It is truly liberating that the myth of the "staunchly-98%-Catholic-nation" has been dispelled once and for all and put in the dustbin of history where it belongs. Christianity is founded on strong principles, which I deeply respect. But these have been utterly corrupted by those few men of the cloth who want nothing else than to cling on to power: the power to control and the power to impose their own values on everybody else. I hope they realise now, that the tyranny of fear serves no purpose nor any good. The Christ that I respect is the Christ who preached compassion, even for one's own enemies, and not the Christ who built his entire Church on the fear and wrath of God. The Christ that I respect was the Christ that got angry; the Christ that wasn't afraid and not the Christ who preached docility and told people to shut up and do what they were told. I will be ready to forgive these few men for the shame, division, ignorance, hypocrisy and bigotry that they have sowed in the foundations of our country for so long if, and only if, they are ready to reform and move on with the times. If this is not possible, because some scripture of Canon says so, they can stuff their apology and if that makes me "anti-clerical", than so be it.

To our politicians I say shame on you all for not having the guts to legislate on a basic civil right. This issue should never have gone to a referendum in the first place but I am realistic enough to accept and admit that, as things stood before the 29th of May 2011, this could not have been possible especially because of the divisions in both political parties on the matter and because of its unfortunate controversial nature. It is sad that before today divorce was a controversial matter, despite the fact that lone figures openly spoke about its introduction - even in the mid-90's.

My deepest respect to Alternattiva Demokratika for being on the right side of history, ever since their conception in '89, on matters that concern civil rights and civil liberties. Now is your chance to push for a third party in parliament. Do not let it go to waste. But do not tread the path of arrogance and isolation. Love him or hate him, do not forget that Joseph Muscat himself put this issue in the limelight ever since he contested for the Labour leadership in 2008. Neither should you forget that if it weren't for him Labourties "who would have otherwise voted NO instead opted to stay at home"; that, in a sense, this was a cross-party campaign; and that several thousand Labour supporters voted overwhelmingly in favour of divorce legislation. The numbers speak for themselves. The denial of these truths would destroy the respect that you have built by the conviction of your principles.

To the Hon. Prime Minister Lawrence Gonzi and his coterie I have only one thing to say: your belief in the nanny-state has rubbished your pro-European convictions. Not for a moment have I felt that you represent a modern, secular and European Malta. You are nought but the purveyors of isolation, intolerance and close-mindedness. On the other hand, I congratulate all those Nationalist Party supporters who believe in a modern and European Christian Democracy, who weren't and aren't afraid to disagree against their own party, where disagreement is merited. I hope that work will begin for reformation (a complete overhaul I would say) within the Nationalist Party.

But the biggest victory and the greatest thank you goes to the Maltese people: the David that beat Goliath and the social movements that represented "David" in this battle for civil rights. I admit that I was wrong about the Maltese people. I was certain that fear and intimidation would win. But the Maltese people proved that they are strong - that they are not ignorant. Thank you, all of you, for doing your part in this victory against all odds.

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Rights & Interests: The Distorted Progressivism of Joseph Muscat

Article 14 (1) of the Universal Declaration of Human Rights states that "Everyone has the right to seek and enjoy in other countries asylum from persecution". This should be read in conjunction with Article 33 (1) of the 1951 Geneva Convention on the Status of the Refugee which holds: "No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

These two principles, i.e. the right to seek asylum and the principle of non-refoulement are inextricably linked and together they form the very cornerstone of refugee law. Because one cannot exist without the other, the principle of non-refoulement applies not only to established refugees but also to those claiming asylum. This is so, because in order to protect refugees "asylum applicants must be treated on the assumption that they may be refugees until their status has been determined." Therefore, to say that Malta or any other nation should, in principle, reject asylum seekers entry into its territory simply because other States did so, or because solidarity is lacking at a European level in this regard, would be to tacitly accept such a gross violation of international law and basic human rights. To laud such acts and justify them on national interest grounds is, to put it mildly, a revolting act.

I said it once and I'll say it again: human rights are non-negotiable. If we are to presume, for the sake of presumption, that human rights are indeed malleable legal institutions than there would be no harm done in prosecuting writers and publishers for their work as this could easily be justified in the 'national interest' or the 'common good'. Even more so with civil and political rights such as divorce and the right to vote, unfettered, upon attaining the age of majority. And if it is indeed true that in order to change things you need to win and be in power, nothing would justify stooping so miserably low for the sake of achieving that power. They say that power corrupts. It seems to me that the quest for power tends to corrupt even more. For there is a serious moral corruption in denying men, women and children protection from degrading treatment, torture or death to score political points. Truth be told, such policies led me to resign in anger from the Labour Party in the past, not support it. Neither, in my opinion, do such policies deserve justification to keep the extreme-right at bay. It is good to know and respect one's enemies but an altogether different story to think, believe and act like them.

To be truly progressive you must confront both religio and patria - the cultural hegemony that has thwarted true liberty and sense of being in Malta after decades of Nationalist one-party rule. You cannot merely seem to be acting on one pillar but defending the other because that only makes one slightly different, if at all. Defending and exalting the patria made sense decades ago in colonial times but not so today and if one were to make the claim that we are a colony under Brussels or the northern nations that, to me, smacks of defeatism and close-mindedness not progressivism. Progressivism is to confront Brussels and Italy and France and Germany and confessional right-wing nationalists and not to act like them.

Dr. Muscat has on several occasions made the claim that he overrode the zealously cautious wisdom of his advisors, for "it would have been easy not to act or speak" on controversial issues that are in conflict the opinion or belief of the substantial majority - but why not so on immigration? Is it because the numbers and percentages on this one are too one-sided? I seriously thought that this ingrained mentality would start to seep away after the events in Libya unmasked the true face of Ghaddafi and the Libyan regime on the presumption that there would be a greater sense of compassion for those migrants seeking to flee from the hell-hole that is Ghadaffi's Libya. The same Ghadaffi that uses migrants as mercenaries under pain of death. But it seems that the more things change the more they stay the same.

What is it to be progressive on immigration? It is to embrace people's rights to seek asylum from persecution without distinction yet to acknowledge that Malta, a small island state with scarce resources and manpower, has its limits. It is to scrap the entire detention regime with one that is more justiciable, efficient and humane. It is to recognize that people come before nations and religions and vested interests. It is to end the hypocrisy and the bigotry in a nation where divorce and obscene writing seem to be a greater evil than the death of persons by persecution or at sea. It is to flex one's muscles with politicians unwilling to give a helping hand and with tyrants willing to use people as blackmail and bargaining chips as opposed to scratching their backs. It is to recognise that migrants are not always a 'burden' but also an asset. It is to end the exploitation of migrants in the labour market and give them equal rights such that they are on an equal footing with Maltese workers. It is to educate Maltese society, especially the working class, that it has nothing to fear but much to gain. It is to recognise that some migrants are here to stay and to actively facilitate their integration even by giving them voting rights in council and European elections. It is all these things and many more. Until then, with all due respect, do not call yourself progressive because it just doesn't work.

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