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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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:

 '...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

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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