Andrew Sciberras

The first thing that comes to mind is change from the status quo. This change must not be based on a mere transition of faces, colors and slogans but it must be deep-rooted; that is to say from the top-down, from the bottom-up and from side to side. It must reflect a change in political culture and ultimately socio-cultural mentality itself. It must therefore be a change that resists and overcomes the culture of patronage and individual interests. It must defeat divisions and destroy divide-and-rule. It must, at the very least, lay the groundwork to eradicate nepotism and cronyism which, in turn, give rise to abuses, clientelism and corruption. 

Equality is a social issue that is closest to heart. It must be real and it must be felt. The underlying motif should always be that basic fundamental norm that all human beings are born free and equal in dignity and in rights. All distinctions based on race, sex and gender, creed, sexual orientation, political grouping and so on must be slowly destroyed. But I do not realistically expect that on the morrow of the election we will have a complete liberalization of all social constraints. Socia liberalisation, secularisation and europeanisation cannot be completely divorced from historical identity at the click of a finger. Prudence demands patience, mutual understanding and compromise and I am somewhat irked by the mentality of "all or none". The same reasoning applies to addressing immigration. I expect much more to be done to safeguard and enhance rights and dignity of asylum-seekers but won't go to the other extreme by claiming that greater efforts at EU-level on responsibility sharing is taboo or unjust, especially considering Malta's limited size and resources. 

Social justice is equally as important. I am not against success and profit so long as it is shared prudently and fairly. I want to be able to be truly proud to pay taxes in the full knowledge that they are going to benefit those who are lesser off. Having said that, no one should simply live off social benefits for the simple reason that they couldn't be arsed to at least try. I am somewhat averse to means testing but I find nothing wrong with giving people the choice to opt out, voluntarily, from benefits such as stipends - guided by civic duty and social justice. Also, austerity politics should be overcome as it is short-sighted and self-defeating. Saving and spending should be wise and prudent. My basic economic compass tells me you should tighten the belt when the economy is strong and smooth - to spend when rainy days come (and not the other way round). Furthermore, spending should be made on things that matter and reap long-term benefits. 

I am not anti-capitalist and have faith in the private sector but I expect employers and laborers to have equal seats at the table. I also believe that the state has a role to play in guiding and regulating economic practice when necessary. This is no taboo and should never be treated as such. 

Transparency and accountability are pretty much tied up with my primary concern. It goes without saying that  enacting transparency and accountability requires a holistic approach and not 1 or 2 pieces of legislation. Nonetheless a Whistleblower's Act, party-financing legislation, appointments on public authorities and boards, and stronger action against political corruption should be mandatory for a new government (although I do agree that with respect to political corruption  - the same measures should apply to the corrupter whoever he or she or it may be - and not just the politician). 

Justice is also close to heart especially now that I work in the field. The judiciary and organisation of the courts require urgent reform ranging from the way appointments are made to increasing court facilities and staff. There are many issues that need to be addressed which I have briefly touched upon here (paras 18 to 24) and here. 

Several other important issues that must be addressed such as ending moral paternalism,  sustainable development and planning, constitutional revision, child-care, employment, energy poverty, electoral reform and so on. 

AD

I confess that, being a social democrat firmly on the side of the liberal left, the most obvious choice would be to choose AD in these elections. However, you would be mistaken to think that it is so straight-forward. AD has made grave errors in this election and it is not infallible or beyond reproach. AD is right to claim that is has been consistent and progressive. Yet, in claiming the mantle of "the voice of reason" it has zealously overstepped limits of even basic courtesy and manners by dubbing anyone who votes otherwise as "tribalist", "sheep" or unable to "think freely". This is insulting to say the least and betrays its progressivism and inclusiveness by giving way to quasi-unbridled arrogance which really puts me off. It seems that AD has become an exclusive club that measures intelligence and free-thinking on the basis of your vote. I am also completely against the "PNPL-dichotomy" label because it is a historical falsity. It is PN which has been in power for the last 25 years and not PL. There is no wrong in differentiating oneself from other parties (actually this is a sine-qua-non in politics) but to lump all the country's faults as "PLPN" is misleading.

PN

The only thing that PN has going for it is the relative economic stability in a turbulent economic climate. Of course this has to be qualified by conservative and prudent banking policies. And to be fair, one must conduct a thorough audit of all public authorities and corporations to be able to get a better picture of the state's finances. Other than that PN represents the status-quo defined in my opening paragraph. No chance.

PL

This leaves PL. The thing that put me off most about PL throughout this entire campaign was Muscat's answer to push-backs on asylum-seekers, even if he has qualified this insofar as Libya is a "safe country". Secondly, the hunting issue will cost more votes than gained; that is a certainty. I don't appreciate hunting and  have difficulty appreciating law-breaking hunters even more than hunting itself. But the portrayal of Muscat as a reckless gun-toting-bird-killing redneck  irks me when you consider that he has been very clear: hunting strictly within EU-law framework and increase in enforcement. If you are truly against hunting then criticize the law that allows it to happen in the first place including the judgement that allowed for a spring-hunting derogation under strict supervision. Furthermore, if you are truly against hunting you should call for it to be banned outright. In my opinion, Muscat's true mistake on this issue was not inviting ENGO's such as Bird-Life to also have a seat at the table of discussion. Because of this omission, ENGO anger is merited.

Whilst there are clear red-lines for me on immigration, I will not base my entire vote on spring hunting as the major issue of this campaign. One has to also acknowledge the fact that it is simply not possible to agree with absolutely everything. If I want a party with which I can agree with 100% I'll just go and become a candidate myself. Indeed, Michael Briguglio himself had disagreements in 2008 with AD. Unlike Briguglio, however, I do not think that either-all-or-none is a valid approach to take. I will not abandon ship (as I've done before) but do my damnedest to vocally-crticise and sway opinion, and I do believe that Muscat is not averse to changing his opinion.

These issues aside, PL has opened up. It has been firm and consistent on the need for change from the status-quo, as it has been firm on equality, transparency and accountability.

Decision

Sorry to disappoint, but my "very limited cognitive faculties-cum-tribal instinct" tells me to vote for PL candidates best placed to bring about change. Don't worry though, insults aside, AD will still get my cross-vote, with a higher preference than you may think. 

From the outset the title of this blogpost immediately conveys the idea that I consider criminal defamatory libel "evil". In particular, I find that it is inherently wrong and undemocratic to put someone in prison for words or writings about others even if they end up to be purely speculative or outright false. Criminal libel is part of our criminal law and is established as a crime in Article 252 as follows:

252. Whosoever, with the object of destroying or damaging the reputation of any person, shall offend such person by words, gestures, or by any writing or drawing, or in any other manner, shall, on conviction, be liable to imprisonment for a term not exceeding three months, or to a fine (multa). 

The penalty is decreased where the defamation consists of vague expressions or indeterminate reproaches, or where the words or gestures used are merely indecent (crime becomes a contravention). However, it is increased if such defamation occurs in writing, drawings or effigies that are divulged and exhibited to the public (imprisonment of up to one year). Moreover, the party who defames is not allowed to produce evidence of the truth except in the case of public officials and he/she shall only be exempt from punishment where that truth is deemed by the courts to be in the public interest. It appears that in the case of private individuals there is no defence. 

The criminal law, however, makes a distinction between defamation and libel on printed matter. In the latter case, it states that the provisions of the Press Act shall apply. 

The issue with defamation is a delicate one. Unfortunately for free-speech radicals, damage by words or writing to the reputation of others is one of the exceptions to freedom of expression. One must bear in mind that the motivation behind such law is that a person who, in bad faith and with malicious intent, conjurs up a falsity to utterly destroy the reputation and honour of another (his family included) should be made to suffer some form of punishment. I think that most would agree that this is a serious inherent wrong that is objectively justified. The problem arises with respect to punishment: is imprisonment a proportionate response to counter such wrong? 

Furthermore (and parallels can be drawn here with the laws on obscenity and their consequences viz-a-viz artists) such a punishment may indeed serve to stifle the media. But one must not immediately come to the conclusion that, as a result, laws such as these should be immediately demolished and thrown in the dustbin of history. That would be rash and may open up a Pandora's box - or simply a case of going from one extreme to the other.  

The UK abolished criminal defamatory libel as recently as 2010, but as other more recent events suggest (Leveson comes to mind), the media too can play very dirty games. Of course, one has to take into account the fact that the case with NotW/Murdoch/etc involved other offences relating to privacy -  but these same issues (recordings and whatnot) are cropping up here too. 

Whatever the case, I claim that the motivation behind this law is well-reasoned but it does require serious reform. Perhaps one step forward would be to give the alleged "defamor" more freedom to prove the veracity of his allegations - in other words this defence should not be restricted in any way. Secondly, the law or procedure should be drafted in such a way that the prosecution and/or complainant must prove beyond any reasonable doubt whatsoever three key points: (1) the falsity of the words, writing or gestures (the mind boggles at what such gestures could be) ; (2) bad faith; (3) malicious intent. Thus, even though a writing may found to be ultimately false, the "defamor" should be exonerated when he/she proves that such writing was drafted in good faith and/or without malicious intent. A case that comes to mind is that issue concerning Joseph Mizzi's (public official) alleged "drunk" episode at the Eurovision. Mizzi may have furnished proof that his drink was in fact spiked, but it does not mean that the press who brought this incident to light did so in bad faith. Other obvious cases are articles on statements on serious shortcomings - even corruption (and associated whiffs) - but which cannot be definitively proven. 

Thirdly, the punishment for imprisonment should be removed as I feel that, although the damage caused may be serious, it would be a disproportionate response to mitigate such a crime - all the more so when it is applied to journalists who draw up articles from various sources. Furthermore, it appears that such punishment is a mere relic of the past as it is supposedly no longer applied/enforced by the courts.

Another plausible alternative would be to merely remove the criminal aspect and to retain the civil "offence" under tort/libel. A legitimate downside to this (in my opinion) is that in the civil realm, the court bases its decisions on what is called 'balance of probabilities' rather than 'proof beyond reasonable doubt'. Thus it may be easier for a civil court to conclude that harm was done than a criminal court; and there is more scope for subjectivity rather than objective forensic evidence.  

Ultimately, the monetary compensation and the exoneration by the court of the alleged crime should definitely serve as sufficient remedy. Coupled with this should be other procedural reforms in the sense that such cases are treated with greater urgency by the courts. This is best for both parties for on the one hand the alleged victim may lose not only his reputation but also livelihood (by being forced to resign for example), and on the other hand (if the criminal offence is retained) the alleged violator would be accused of a crime which is serious in itself. Another interesting aspect (more substantive than procedural), but which may not go down well, would be to apply fines that are proportionate to the damage suffered - both actual and moral - and not a mere maximum of €x. Lastly, and perhaps this is the most difficult part albeit the most obvious, persons in the public sphere have to acknowledge that they are not immune from scrutiny - that the functions they serve (and not their private lives, please) and how they serve them must be put under the magnifying glass. 

We've probably heard it all before in 2001; that the judiciary is in need of a complete overhaul. Nothing much has really changed though, if at all. During that time I was but 14-15 years old, probably studying O-Level Chemistry and Biology, growing my hair, headbanging to Opeth and Beheaded and not giving too many shits about current affairs. In that rebellious spirit I was adamant to steer away from law, aiming for Medicine & Surgery instead, because it was bloody intriguing (pun intended). Horns up and all that. 

But times changed and the "family footsteps" I have indeed followed. Just one tiny step away from being a fully-fledged lawyer interested in litigation, the very foundations of the justice system have been rocked once again (can't wait to see next year's B.Comm or Architecture & Engineering buscade banners) and this time it stings. 

So here's my two-cents about judicial reform. 

First and foremost, no system will ever guarantee foolproof protection against corruption and bribery. The vice of corruption in inseparable from big fat human mistakes which not only destroy one's career but - far worse - one's integrity, reputation and honour. Having said that, there may be ways that can offer a greater guarantee of appointing more suitable members to the bench. Or at least, certain manners of appointment may offer a greater degree of public trust in such a vital institution. 

The current system, enshrined as it is in our Constitution, provides that both Judges and Magistrates are appointed by the President in accordance with the advice of the Prime Minister. In other, words, Judges and Magistrates are appointed by the Prime Minister of the day. In other other words, Judges and Magistrates are either appointed by a Nationalist or Labour administration. These are, pretty much, political appointments limited only by certain factors, such as that Judges may only be appointed after he or she has practised law  as an advocate in Malta for an aggregate of twelve years (seven for Magistrates). Nonetheless, the allegation/insinuation/perception (call it what you will) that Judges and Magistrates are either blue or red-eyed is not that wide off the mark in the whole scheme of things, even if they have to exercise their functions and conduct themselves (both judicial and personal - ideally) in a manner free from all political bias or connections whatsoever. For the maxim that justice must not only be done but must also be seen to be done, the current system does not offer such a solid guarantee. Furthermore, the current system offers no guarantee of appointing members to the bench that are truly well versed in the law, its interpretation and it's application to the facts of a case, resting as it does on a largely subjective decision of the Prime Minister and, presumably, his Cabinet. 

What if we were to adopt a system whereby members of the judiciary are democratically elected by a free and sovereign people? This would surely take the decision out of the politicians' hands and offer the greatest degree of public trust possible. I mean if a majority of people directly elect members of the judiciary then they must surely have trust in him or her. All pretence of subjective and political appointments would wither away. But the pitfalls of this system, promising though it may sound, are larger than its positive aspects - at least in my opinion. First of all, the judge would him or herself become somewhat of a "politician" susceptible to lobbying by major interest groups. We would have the Judge or Magistrate of the Chamber of Commerce or the Hunting and Trapping Federation to whom he or she would owe a certain fealty. The more wealthier lawyers, with the greater connections would surely have a greater advantage - even if he or she is a nincompoop when it comes to the law. This could be tempered by disallowing all forms of advertising, lobbying, endorsements and donations in the case of judicial elections - but that, in turn, could give rise to free speech issues. Secondly, holding nation-wide elections in a system where judges and magistrates are appointed "for life" (or rather until they attain the age of 65 years) would surely give cause to logistical and financial headaches. Whilst this is no reason to hinder democracy, it is, nonetheless, a real problem.

Another system, followed in certain nations of the Continent, such as Italy, Germany and Spain, is based on actually studying and obtaining a degree/doctorate (whatever) to become a judge or magistrate. This would require the creation of a specific "Judiciary Course" whereby holders of a law degree or doctorate would further their studies to become judges or magistrates in a competitive academic system. Here again, and if the selection process is truly fair and based on merit, the decision is taken out of politicians' hands. This is an interesting way in which to solve current shortcomings, for in one fell swoop it would decapitate political subjectivity and guarantee that the persons sitting on the bench are more specialised in legal interpretation and application. The problem here, however, is that if one where to immediately further his studies to become a judge or magistrate then he or she would be deprived of any *real* court practice. He or she would be more of an academic rather than a lawyer - not that there is anything really wrong in that , but as any budding lawyer will tell you - there is a veritable yet metaphorical ocean separating life at university/academic theory and the real nitty gritty of court practice. It is much like getting out of the frying pan and into the fire - at least until you manage to settle in. This anomaly could be tempered by keeping the twelve (or seven) years court practice requirement before being eligible to enrol for such a course; plus ensuring that any such judiciary course requires mandatory practice as judicial assistant or associate judge for at least one, if not two, years. Another issue would be that such a course would have to be very restrictive and, ultimately, competitive - opening only when a vacancy is imminent - and from which only the very best may pass. Major problems would arise if no one is interested in the job, or if only one candidate would apply. Nonetheles competition, even if nasty, is healthy. This is a system which one should keep in mind. 

Another way round to reforming the judiciary is one which I have previously advocated here. Whilst it still leaves the decision of appointment in the hands of politicians, it is taken away from the Executive and vested in the Legislature. In other words, members of the judiciary may only be appointed in the same manner by which they are impeached; that is by a two-thirds majority of the House of Representatives. Such a system would ensure a broad-spectrum of support and approval by all parties in the House and is surely a form of semi-democritisation of the current system. The vote could be preceded by a specific Parliamentary Committee, chaired by the least partisan person possible (maybe the Speaker or the President of the Republic himself) which nominates candidates in conjunction with the advice of the Commission for the Administration of Justice, the Chamber of Advocates and, why not, the Faculty of Laws (comprising the Dean and Heads of Departments). Politics would not be completely avoided and headaches/delays may arise if major disagreements exist - but it is a leap forward from what we currently have. 

Reform, however, cannot start and end with the manner in which we appoint members of judiciary. It has to be thorough and from the bottom up. Furthermore, judicial reform must be accompanied with major political reforms. Since Franco Debono said so much about this and, love him or hate him, he is right - I will spare you further reading.