There is something only slightly more horrible than the prospect of the Labour Party unilaterally deciding what our new constitution should look like. And that is the prospect of the constitution being drawn up in some smoke-filled room between the Labour Party and the Nationalist Party across a table chaired by a President bred out of the same political duopoly and then enacted swiftly through a Parliament — and a symbolic plebiscite — with no controversy and a little ceremony in place of debate.

In theory, politics based on cross-party consensus is a nice thing to have. It looks civilised and politically grown up. In our context, that’s a bloodless coup.  And the impending ‘constitutional reform’ and the birthing of a ‘second republic’ as some are romantically calling it should be a nightmare if only we knew enough to be scared of the prospect.

The Constitution is no ordinary law. It is effectively the contract by which the people cede the sovereignty they are born with. That concept, so fundamental and so radical, is alien to our political culture. Because our own constitutional history has never been a product of popular action.

With the possible and tangential exception of the bread riots of 1919, constitutions were granted to us from above, written for us by visiting delegations who adapted colonial models with as much awareness and understanding of the local context as Edward Barry had when he shrunk his design for the Covent Garden Opera to build an Opera House in Valletta.

In our collective unconscious constitutions are gifted from above. They are taken as a complete package and the only appropriate reaction is polite indifference or in the exception of the enthusiastic lackeys worming their way up in life, enthusiastic gratitude.

The fact that our constitutions were designed by a country that never wrote down its own may have something to do with the vagueness of our own aspirations.

It should be quite simple really. If sovereignty originates from the people, and in the interests of social solidarity, safety and justice they decide to delegate the administration of that sovereignty to the State, the Constitution defines the limits within which the State must operate. 

The power entrusted to legislators to make laws is limited in scope by the constitution that, for example, does not allow them to pass a law that imposes death if you’re late on your taxes because disproportionate punishment is forbidden in the constitution. To name one example.

The power entrusted to administrators to implement and enforce laws is limited in scope by the constitution that, for example, does not allow them to put someone in prison without proving their guilt in a court because punishment without due process is forbidden in the constitution. To name an example.

The power entrusted to judges to pronounce judgement is limited in scope by the constitution that, for example, does not allow them to take decisions without giving both sides of the story fair chance to explain themselves because inequality of arms in a dispute is forbidden in the constitution. To name an example.

Unlike all other laws, the Constitution is not a law that gives the State power. A tax law allows the government to collect it. A criminal law allows the court to punish those who disobey it. They are empowering and enabling laws that arm the State with the tools it needs to exercise its power.

But the Constitution in defining the powers and authority that the State has, effectively defines the limit of that power and restricts the State to act within those limits. It tells the State what it cannot do.

The core mission of the Constitution is not to allow but to disallow. It is not to empower or to enable Parliamentarians, Governors and Judges but to draw the lines around their borrowed authority beyond which they would be encroaching on the inherent sovereignty and freedom of every individual.

This is why the colonial tradition of Constitutions handed down from above is a perversion of what Constitutions should be about. In that arrangement, the departing point is that the people are incidental inhabitants of a military fortress, the mediaeval dredge of labourers, prostitutes, traders and innkeepers that inevitably and organically grows around a castle. Power, all-encompassing, unlimited, undefined resides in the castle from where rules come out that define the operating hours of the market and the areas accessible to the prostitutes when plying their trade.

The way our colonial masters perceived the granting of our constitutions was no different. Which is why they spoke of ‘granting’ constitutions. They saw them as their reluctant gifts like King John signing the Magna Carta to his own disgust only to say he was forced to do so under duress the moment he felt safe enough to do so.

Which is how the British switched off our constitutions the moment they felt it was more convenient for them to do so: actions usually met with general indifference peppered with ceremonial anger by the political elites.

Why am I saying all this? After all, there are no colonial masters anymore. Our Constitution cannot be suspended at the whim of the executive. And our political parties are engaged from the get-go in the reform of the Constitution.

I am saying all this because things are less different than one thinks.

Let’s look at some of our realities and there’s nothing romantic about the murk that surrounds us.

In theory, our Constitution cannot be suspended by executive authority. But that act of terminal colonial drama is considerably more honest than our reality today. The executive cannot suspend the Constitution but it feels free to ignore it.

Executive excess of constitutional limits is commonplace. As the depressing and illuminating series by Giovanni Bonello shows the impunity of the executive is almost universally sheltered by the complicity of the courts that habitually rule in favour of the defendant in your average Joe Citizen vs The Government. The rate at which the decisions of our courts are overturned in Strasbourg is stunning. The gratitude that there is the European Court of Human Rights as a court of last resort is misguided. 

Firstly, not everyone is stubborn enough to go that far. People and businesses are often intimidated even by the prospect of initiating a case in Malta, let alone finish it in Strasbourg. Dragging the government to court is still perceived by many as an act of subversion, even blasphemous in a quasi-religious sense of defiance of the proper order of things.

Secondly, the government here deals with precedent in the most facetious way. Having no choice but to accept that a law found in breach of human rights by a Strasbourg court must be removed, it is swiftly replaced by a different version that has exactly the same effect. In the meantime, if Mary is successful in Strasbourg arguing that the government acted illegally when they took away all her green apples, Simon, Thomas and Jane will still need to go to court to argue on exactly the same thing.

Thirdly, before going to Strasbourg a case will have needed to fail all proceedings in Malta, meaning that years would have passed since the dispute first started. The decisions of those Maltese courts backing the actions of the government eventually found to be in breach of our human rights are, by implication also an extension and aggravation of that breach.

Therefore our Constitution may not be suspended. But it can be, and it is very often, ignored.

The engagement of political parties in the reform of the Constitution is no comfort either. Political parties fancy themselves as representatives of popular will and it is how they justify sitting alone in a room at the Palace and deciding the rules defining and limiting their own powers.

But it’s a fancy and it relies on the inherently dishonest excuse that people are engaged in our political process. Voting en masse, even if barely conscious of the issues — in some cases in the case of people carried in their beds barely conscious at all — is not satisfactory evidence of political engagement.

Flag waving is no political engagement. The sort of partisan discourse that plagues our entire existence is not political engagement either. People speak of “our party”, of “we won”, of “we did this to you” when discussing politics in the same way people say “we scored” when Cristiano Ronaldo nets one for their team. They say “we” but when the goal was scored they weren’t sweating in the football field. They were playing vicariously beer can in hand on their fake leather couch.

Watching sports is just a bit of fun and an excuse to sell expensive merchandising to people who don’t really need it. They make football shirts in XXXL.

Watching politics like this is an abdication of responsible citizenship, which earlier in this piece I described as polite indifference.

A combination of a colonial heritage and fifty years of education in an independent context that has been timid in getting people to recognise in themselves true sovereignty and therefore the rights and responsibilities that come with it have left us where we are today.

At the heart of all this is the failure of even the most basic understanding of what it is to be a citizen. People are not pelting Konrad Mizzi and Keith Schembri with coins over the Panama scandal because many do not have even the most basic appreciation of economics. People are not screaming in disgust at the design of the tower planned for Pembroke because many don’t have even a basic grasp of aesthetics.

And people are indifferent to the sale of Maltese citizenship because many do not even grasp the basic notion of what citizenship is and how abhorrent is even the idea of putting a price to it and retailing it as a commodity.

It is easy to brand this argument elitist, patronising and self-righteous. Political parties do it all the time. They tell their flag wavers that others think they’re stupid or ignorant but they? Ah, they respect their intelligence.

That’s what the fox and the cat told Pinocchio when they parted him with his money.

That’s what the second-hand car salesman and the snake oil merchant tell you when they want to cheat you: they flatter you and tell you, you can trust them because after all you’re too smart to be fooled.

Constitutions are contracts between the people who cede some of their sovereignty and the State that will administer it on their behalf.

In that arrangement, political parties present themselves as acting on behalf of the people, when they are actually components of the State. Therein lie the inherent unfairness and manifest danger of them being the ones defining the limits of their own power.

They are the State even as we speak. In our present Constitution, the limits on the executive are subject to the restraint the incumbent political party unilaterally exercises on themselves. They get to choose the judges that will review their decisions. Not all the judges ever chosen, even in the last five years, were partisan lackeys, but many were. And the last five years have started a ruinous trend that will not be improved when and if the opposite party gets to power and feels justified indulging in a counter-balancing replenishment of the ranks of party apparatchiks of their own.

We have seen that game played in the police, the civil service, the planning regulators and the other institutions that are supposed to curtail executive power but have instead been paralysed by decades of partisan reciprocal self-cancellation. The fact that Labour is far guiltier of this is only relative and frankly irrelevant. It’s the fact that it could do so that is the issue here and though the PN in government exercised far greater restraint is a matter of historical interest not a measure of the health of our institutions.

The political parties — Labour and Nationalists — have duopolised access to the legislature for all the time since independence. That had the benefit of political alternation and governmental stability. But it has also restricted discourse to blue and red or depending on where you’re sitting, white and black. 

It has made our Parliament — in theory, our highest democratic safeguard — a ceremonial joke, utterly pointless even, if not especially, in times of reckoning like deciding whether Konrad Mizzi caught red handed should be kicked out. Our Parliament is incapable of doing even the obvious. Are these two political parties — who have occupied so utterly the political space of the present Constitution — to design alone the limits of their power in the next one?

Labour and the Nationalists nearly duopolise the media. The Broadcasting Authority, constitutionally designed to restrain them in the alien media landscape of the 1950s, is worse than useless. TVM — like the institutions mentioned above — is controlled by the party in government to the extent that the party in government wills it. The fact that Labour feels no shame is historically interesting but in effect, the rules, the risks and the pitfalls are unchanged whoever is in power.

And then they own One and Net, machines of spin and often outright lies that are justified only by the fact that both exist in a perverse world where one lie is bad but two lies are okay. The combination of all three ensures that no one has space anywhere else to question the complicity of political parties in the wielding of power even beyond constitutional limits.

Unless one writes in English in a newspaper read by an ever more shrinking audience, the space to stand up to the partisan duopoly is swallowed up by the parties themselves.

Unions have become a husk of what they used to be. By extension, their interlocutors — employers — focus on the narrow needs of their businesses without regard to a broader national agenda.

Environmentalists are portrayed as loony nihilists resisting the inexorable force of progress which, being progress, is necessarily good in and of itself.

In that reality, grown over time and cemented in the vaulting and populist ambition of the Muscatian ear — as the Mintoffian era which it imitates and improves upon — sovereignty is vested in the Labour Party with tokens thrown at the Nationalist Party which it receives with misguided gratitude.

They will call it snobbish, patronising elitism. Let them. They do that because they would rather flatter their flag-wavers than live up to their duty to care for them. Consider how we have rules that force your banker to make up for the fact that you, as a client, are likely to have a very poor understanding of the way financial investments work. They can’t simply sell you what you’re willing to buy. They’re obliged to make sure you understand your risks and just how much you stand to lose if things go wrong.

That’s duty of care. It is not snobbish and elitist to recognise that not everyone with money to invest understand the workings of financial investments.

By the same logic, not everyone with a vote understands intuitively the workings of democracy and the mechanics and wielding of State power. Waving the party’s flag in a plebiscite on a new constitution forged conspiratorially by the Parties that will be granted power by it is no democratic exercise, although it will be called that.

We are not in time to make up for centuries of colonial acquiescence. Nor for the decades of civic vacuity in our education. Nor for a century of partisanship and clientelism, most of which under the mastery of the same two political parties.

But there are things that can mitigate our truly depressing context. 

We do have experts — homegrown and international — who wave no flag but on whom we must rely to guide us and help us temper the enthusiasm of political parties for giving themselves more of our freedoms. We must insist they’re in that room where decisions are being taken.

And civil society — journalists, academics, activists, unions, associations — we have a duty of care to our citizens to represent their interests and resist the encroachment on their rights. They won’t be grateful. Many will rather wave the flag of their party. But doing the right thing is not a matter for gratitude.

And retired practitioners — former judges, civil servants, diplomats and politicians — they have a duty to impart their wisdom and experience of the mistakes of the past unclouded by ambition or loyalty to a political party against the promise of future reward.

And young people — the hardest to engage in a universe were philosophy is capped at 148 characters and ennui is a badge of honour. They are called now to build their own future and to ensure that no one makes them slaves, willing or unwilling, of a State that possesses their thoughts.

Ceding rights and freedoms inherent to being an individual and a component of our society must stop being a process of misguided gratitude. Ceding freedoms should by its very nature be a process of extreme reluctance.

Never, as much as the making of a ‘second republic’ has that reluctance been more needed. Never has the duty of being unpopular in defence of the interests of the people themselves been as great a responsibility as it is now.

Without the parties’ resources, civil society must act to curb the enthusiasm they are showing to carve an even greater space for themselves in our lives.