Archive for December 2011

Historical Facts and Freedom of Expression

By | Published Friday, December 23, 2011

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:

 '...it 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

By | Published Wednesday, December 14, 2011

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

By | Published Sunday, December 11, 2011

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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