Archive for January 2012


The Franco Debono saga, culminating and anti-climaxing today, was a lesson in naivety from all parties concerned. It was naive to actually believe that Franco Debono would hold his ground and vote out the government. He has huffed and puffed before but never did he blow the house down. And he never will because there is, simply put, too much at stake for him. That was a lesson not learned by PL exponents and media, including independent media, who built up the tension or hype and planted the idea that elections are now inevitable. Having said that, I do not believe that Joseph Muscat was immature in calling for such a vote. 

It is also ludicrously naive to think that this was some victory for PN or government. This was a motion of no confidence in government. Constitutionally this motion has failed to pass. But only just. And to believe that a 34-34 tie means business as usual or that Labour lost is absolutely insane. That is like telling me that I should dump all reason, logic and intelligence in the toilet and pull the flush. The political ramifications of being saved by the Speaker of the House in a vote of no confidence are clear enough for those who are not blind and guided solely by partisan zeal and idolatry. Gonzi's government did not lose but it came out more bruised than it ever was. There is no stability or certainty in a government that is literally hanging by a thread. Therefore, I do not believe that PL (and also AD it seems) have been arrogant to state that the PM should call for early elections. 

It is also naive, and here is the crunch, for Franco Debono to believe that those who failed in the administration of government will now assume responsibility; that the infamous 'clique' will magically disappear; that transparency, accountability and individual or collective responsibility will become the order of the day; that all the hate will be supplanted by intelligent criticism. 4 days of constant rosy rhetoric and nauseating propaganda in Parliament by government ministers is proof enough of the mentality that everything (save for a few, isolated and half-hearted utterances of "we're not perfect") is just dashing. And hey, if it's not broke, why fix it? This is why I believe that, save for a few short-term cosmetic changes, there will be no deep-rooted and profound constitutional and democratic changes which Franco Debono has been harping about. 

Just as it is naive to think that the Maltese do not want an election (that would actually be a historical cultural shift that should keep anthropologists and sociologists busy). Fact of the matter is that it is the Nationalist Party which does not want an election. And again, the reasons why, are clear for all to see. Nor is Labour fully ready for one. 

The rest, as they say, is history. 

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Hands off the ECtHR

Don't trust an Englishman. Never trust a Tory.
In typical Tory fashion, David Cameron advocates an isolationist and state sovereignty approach for the ECtHR. The ECtHR has already declared that it is not a Court of Fourth Instance and does, in fact, allow national courts a wide margin of discretion through the application of the (in)famous 'margin of appreciation' doctrine. This doctrine severely limits the power of the Court. The ECtHR states, even in cases concerning the most basic rights such as freedom of expression, that: 

"By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the "necessity" of a "restriction" or "penalty" intended to meet them...Consequently, Article 10 para. 2 (art. 10-2) leaves to the Contracting States a margin of appreciation. This margin is given both to the domestic legislator ("prescribed by law") and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws in force..." (Handyside v     .........,,,,,,,,,,,,,,,,,,,,,,,...............United Kingdom 1976, paragraph 48). 

Cameron also suggests, albeit diplomatically, that the ECtHR should lay off the United Kingdom (as well as other countries such as France and Germany) and focus on other countries famed for their repudiation of human rights such as Russia and Ukraine. This is, of course, with the excuse to reduce its backlog. I ask Mr. Cameron whether the United Kingdom should be exonerated from the most heinous violations of human rights, including it's inhumane treatment and torture of Iraqi and/or Afghani prisoners of war. 

The United Kingdom, for a very long time, did not have any written statute of human rights laws (today there is the Human Rights Act of 1998 which implements the Convention rights into English law). Because of this the only liberty that was permitted was that which was not illegal. This was the common law principle: human rights are residual rights; they were the exception, not the norm. Even from a cursory glance through most Human Rights law textbooks one will find a huge collection of judgements concerning the United Kingdom. In his perversion of the United Kingdom as some bastion of democracy, Mr. Cameron seems to have forgotten about this factual truth. 

And how can one restore the ECtHR to it's 'original purpose' when the spirit of Convention is so dynamic (as opposed to dogmatic) and evolutive so as to incorporate an ever-greater species of rights with the passage of time? For instance, the ECtHR once agreed with respondent states that the legal discrimination between 'legitimate' and 'illegitimate' children was at the discretion of individual states. Later on, and due to the fact that the majority of European nations started to dismantle this ridiculous distinction, the ECtHR reformed its position. It evolved in its interpretation of the Convention. The same can be said of other rights concerning homosexual and transsexuals. 

There is another method where one can reduce the backlog of the ECtHR. Rather than strip away, one should empower it. Give it the right to impose heavy sanctions on member states that are found to violate human rights and improve its power of enforcement at Grand Chamber level. This would discourage member state to remain in a state of violation and encourage them to update their laws in conformity with human rights. Of course, the drawback could be that member states might rescind and revoke their membership under the Convention or even from the Council of Europe altogether. But the diplomatic repercussions would be heavy. But hey, this is perhaps what Mr Cameron actually wants. 

Reform the efficiency of the ECtHR, by all means. But never trust an Englishman to do so. Let alone a Tory. 

God Save the Queen. 

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Democracy not for sale

In a time of political instability there has been talk of changes to the electoral law to the effect that "the party winning a majority of votes at an election would be automatically given a three-seat majority to be able to form a stable government".  The idea is that "in our system, there is the danger that a government will be held hostage by a single MP" and that there might be "too much power in single MPs hands" (see here). The automatic knee-jerk reaction is to (arbitrarily) tweak the electoral law to the advantage of the political parties (Nationalist and Labour).

I claim that such amendments would continue to erode our democracy. Many have seemed to develop the atrocious idea that governmental stability is a cornerstone of democracy. It most certainly is not, for democracy is founded on the most basic of principles including, amongst others, free speech, equality and tolerance, universal suffrage and other fundamental liberties and duties of free citizens. 

First of all, if the electoral (constitutional) law were to be tweaked in this way it would not be truly representative of the electorate's wishes. The electorate, whilst willing to give one particular party the right to govern, might not want to give it a strong mandate simply because it might not trust it enough to govern unfettered and in a unilateral manner. We should recall that notions such as 'bipartisanship'  and 'meritocracy' assumed greater public importance as a result of a mere 1,500 majority (or 750, rather) between the governing party and the opposition. The idea is that: "Yes, you are the governor, but only just. Do not forget that and do not discard the other 49% that did not vote for you".  

Secondly, such amendment would almost nullify the idea that MPs can keep the government in check. It is a sacred constitutional principle that a well-functioning democracy is one where the institutions of the state 'balance and check' each other. This is a particularly strong weapon against arbitrariness and unfettered power. Just to prove my point: a government minister once said that the legislature simply need not meet for government has a five-seat majority in parliament (pre-2008). 

Thirdly, it would effectively destroy the purpose of having third parties. Even if a third party manages to get one member elected in the House I would assume that the party with an absolute or relative majority would still be automatically given a three-seat majority. Although a major victory for the third party, the whole concept of coalition government would be redundant. That third party would not be able to influence the policies of its coalition partner. 

In a true democracy, government should be challenged and scrutinised consistently. It might win a comfortable majority and in that case other institutions (especially the press) would have to do an even better job of scrutinising the workings of government and public officers. But if it does not, we should not fear the influence or power a single MP might wield. MPs, after all, should not be gagged and demonised simply because they do not swear blind fealty and submission to government. 

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Crucify him!

The 6th of January 2012 has proven to be a veritable climactic and political mess for the otherwise serene and sturdy islands of Malta. It falls upon us then, as rational human beings who are not inclined to view everything through partisan lenses, to try to make some sense of it all - if such is indeed possible. After all, if the press is not willing to ask questions, somebody should. 

Let me start with the Hon MP Franco Debono (Nationalist Party). Franco seems to me to be a politician of the highly ambitious species, yet childishly innocent in the manner in which he displays his ambition so publicly. A more skilled politician would certainly be shrewder, more cunning perhaps, willing to bide his time and plot subversion in the shadows ultimately to get what he or she wants without ruffling too many feathers. But Franco has openly defied and criticised the Prime Minister to a point where there seems to be no turning back. The parallels with Dom Mintoff under Sant's government are striking. Sant's fatal mistake was not to tie a simple vote to a vote of confidence. What Lawrence Gonzi and so many others declared as a 'mistake' is to me an act of gentlemanliness of the highest order, for Sant had the courage to sacrifice power for the sake of serenity and stability of the country when a backbench MP was defying him so openly and consistently in a one-seat majority scenario. No, just like Sant, Gonzi's mistake was indeed not to give Franco a portfolio that would truly satisfy him. Let's face it, a Prime Minister should not be held hostage by a backbench MP but this is precisely why he should also be cunning enough and have the foresight to ensure stability in his own party if he is to ensure stability in the nation. Such is the game that is politics. Of course, this is the case only insofar as we make the assumption that Franco Debono did what he did purely out of spite for not being given a ministerial portfolio - something that is not yet absolutely clear for this whole story has yet to be written. 

Now, Franco's rebellious streak has been characterised by Nationalist Party stalwarts and diehards alike as nought but folly, immaturity, disloyalty and even madness or mental lunacy. The established default position is one of absolute loyalty to leader and party. Obviously, for Labour Party diehards he is a veritable hero (further echoes of the Sant-Dom Mintoff saga of 1998). From a partisan perspective this seems to make some sense but it troubles me to see this default position advocated by most mainstream independent press and journalists, which, as the nation's 'fourth institution', has an utmost duty to ask questions and uncover the truth, especially from those that govern and seek to govern. Vicariously, it seems, the independent press also advocates absolute loyalty to leader and party and this, I must say, is highly disturbing in a democracy.

For all his "lunacy" Franco Debono has advocated very reasonable and much needed changes or updating of our laws, such as for example, the right to legal counsel during police interrogation (which entered the statute books in 2002 but was not enforceable until 2010); a complete separation of powers between inquiring magistrates and magistrates that adjudicate; the splitting of the justice ministry from home affairs owing to a conflict of interest between the two and so on. In my opinion these are all positive steps tending to strengthen the administration of justice and, ultimately, democracy. Why hasn't the press questioned the hesitance to bring about such reforms I wonder? Yet, since time immemorial, it seems that the "gadfly" must make the apology and take the poison - and I am shocked to see that this is also endorsed by the press. In other democracies, such as the United Kingdom and Italy, open dissent and criticism within political parties is run of the mill. British philosopher John Stuart Mill once said that people holding objectively true and just opinions "ought not to be moved by the consideration that, however true it may be, if it is not fully, frequently and fearlessly discussed, it will be held as a dead dogma, not a living truth". It is a shame that such spirit and vigour is looked down upon and trodden; it is a stain on our democracy.

This is not to say that Franco Debono is flawless. He is indeed imperfect (as are we all) and, at times, highly volatile or perhaps stubborn and politically immature - traits which expose a certain weakness and do no justice to his cause in the end. Franco, publishing your Form 2 Mid-Yearly report to prove your sanity was utterly unnecessary and counter-productive.

Now to Lawrence Gonzi. He says that we should all be proud that we have weathered the storm of financial trouble but we are not immune; that he was right to give a significant pay raise to himself and his Ministers behind even his own party's back but, even though we are faring perfectly fine economically (albeit not immune), it is somehow...not right any longer. He also says that what Malta needs now is stability but he is perfectly satisfied with the scenario where one MP (Franco Debono) has openly declared that he will not support his government any longer. In fact Lawrence Gonzi has said that he will do everything in his power to hold off elections until the last day of the current legislature. I wonder if this will translate into parliament not being reconvened for as long as possible and a complete lack of parliamentary debate for the next fourteen months. Perhaps laws will only be passed by means of legal notice (around 90% of them already are) without any debate whatsoever. How's that for democracy and stability? And I wonder, who is really desperate to cling onto power?

If the press continue to trod on so negligently and refuse to ask such questions by adopting a neutral position in reporting only what has been said and, to top it all off, crucifying rebel MPs for their lack of loyalty than I will lose what little hope I have left. 

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