I looked up this piece I remembered writing, one of quite a few in the hours after Daphne Caruana Galizia was killed last year. I did that because the heading — her words, not mine — is always stuck in my mind when I look at the reality around me.
Tomorrow the Venice Commission will publish its full report looking into the legal basis for Malta’s democracy and find it rotten and well short of European standards. These are issues that have accumulated over decades since Independence. You could just as well blame PN governments for not making these changes though it’s largely a cross-party failure since most of these changes would require cross-party consensus.
But the failure is wider than our narrow political classes. It’s a failure of civil society, weak and divided in mutual recriminations and partisanship, distracted from the issues at the heart of the workings of our democracy. It’s a failure of journalism that, with few deadly exceptions, never demanded changes that would have compromised the political power of those who possessed it or those who coveted it. It’s a failure of professionals, particularly lawyers and judges that knew the law is an ass but preferred to ride it.
People will largely choose not to understand the findings of the Venice Commission because they will challenge our deepest habits. Take for example the observations about persons of trust fished from outside the normal ranks of the public service without regard to merit and qualifications to rule over the civil service set up under constitutional safeguards.
The way we do things here, you would not expect me to speak about that. I was employed for 14 years in a position of trust from outside the civil service set up under constitutional safeguards. I would like to think that I was qualified and certainly, a tight leash was kept on the numbers and the eligibility of persons of trust recruited from outside the service.
This has really become a major issue now that effectively the State is funding the Labour Party paying hundreds of salaries of people without any competence in the areas they are assigned to even if as absentee landlords.
But it is time to examine the real weaknesses in our system, get over the recriminations of ‘where were you when’, and push to have changes that can earn this country the title ‘democracy’.
When you read the Venice Commission report tomorrow it is likely that the maxim ‘this is no normal democracy’ will no longer be an adequate expression of the desolate and languid frustration with our own lot. ‘This is no democracy’ will be closer to the mark.
The branches of government in Malta are not separate. The Prime Minister is king and the limits of the Constitution are a moral guide followed by Prime Ministers who exercise decency and restraint and ignored by those who would rather not.
The Courts do not have an effective power of review of government decisions. Our checks and balances are not even theoretically sound, let alone effective in any practical sense. The right to access justice is qualified. We are governed by a system that does not meet the basic principles of the rule of law which means it does not meet the requirements of a democracy.
It’s not Daphne Caruana Galizia saying this, though she has for decades. Nor is it Repubblika which speaks to the side-splitting amusement of Saviour Balzan it would seem — or Salv as Konrad Mizzi knows him. Nor is the PN arguing this.
The most respected gathering of judicial and legal experts on constitutional matters in the world, whose advice is sought as far and wide as Peru and Thailand, is telling us our democracy is not worthy of that name.
These are not observations about things we need to update and brush upon. We fall short of contemporary expectations of democratic life. No democracy can be called that if its judiciary is not independent. For long we thought it was because broadly competent people with different political backgrounds were appointed to it.
But we can now see that when a government is in the mood of appointing its cronies to the bench, the myth of judicial independence vanishes into thin air.
The way we choose our judges does not meet European standards of judicial independence. The committee the government set up is well short of European norms and is not a guarantee of judicial independence. On the contrary, it is a cover for executive control.
European standards are not met in our procedures to discipline judges either.
Then you have the Attorney General and the dizzying swapping of hats which is simply unacceptable in a democracy. He chairs the financial intelligence agency. He has the power to decide not to prosecute someone and no one has the right to challenge him on such decisions. He advises the government and is the only one with the power to prosecute its members if suspected of committing a crime. But get this. He also has the power not to prosecute them and no one can complain.
That is not democracy. That’s a joke no one should be laughing at.
We have a Permanent Commission Against Corruption which is as pointless as a letter to Father Christmas. It should be dissolved and replaced with something that can worry the corrupt.
If laws are found by the court to be inconsistent with the Constitution they should be struck down. That’s what happens in democracies. Not here. The law stands and it’s up to Parliament to decide what to do about a law found to be itself illegal.
But of course we don’t really have a Parliament, do we? It’s just the executive with an appreciative audience. Part-time MPs have to earn a living elsewhere and any free time that’s left to them they use to focus on getting their constituents to re-elect them. You would wonder why. The answer is that Parliamentary life is not a reward in and of itself. It’s a lottery ticket in the hope one gets to be a Minister. So everyone wants to be in the Executive but people who find themselves stuck in Parliamentary limbo are just looking forward to the next job.
The only full-time MPs with a purely legislative function are the Speaker and the Leader of the Opposition. Everybody else’s mind is elsewhere. Which is also why conflicts of interest abound and back-bench MPs happily work for the government without regard to the role they were elected to.
The decisions of government are reviewed by a proliferation of tribunals — weak, small, under-resourced and far from independent.
The Ombudsman is largely ignored and the threat that a simple law could abolish the role is ever present.
Secrecy in public administration is standard. The government publishes information about its workings when it is convenient to do so. Freedom of Information law is honoured in the breach. And receipts for nights of debauchery in Monaco hotels are “mislaid” with impunity.
The President of Malta gives a speech written for her by the government. Then she goes on to her day job of a glorified charity fundraiser. Sure she has breakfast with the Prime Minister once in a while but she keeps a copy of the Constitution on her desk and yet can do nothing to guard it.
The President is the only person that ranks higher than the Prime Minister and she cannot do much when he over-steps his limit. Imagine what everyone else who ranks lower can do. The term “permanent” in Permanent Secretary is just irony, like the Holy Roman Emperors not being either Holy or Roman. They weren’t real Emperors either. But Permanent Secretaries are secretaries indeed. No irony there.
There has never been a mass culling of permanent secretaries as the one Joseph Muscat perpetrated in 2013 appointing directly his choices without regard to merit or eligibility. But the issue here is not the fact that he did it, but the fact that he could. It means Permanent Secretaries know they have no tenure and pleasing their Prime Minister is more important than living up to what the Constitution expects of them as a civil service.
Similarly, the police chief is appointed by the grace and favour of the Prime Minister with no regard to merit, competence and the independence to investigate those that could fire him with the bat of an eyelid.
Read the report of the Venice Commission tomorrow and learn what we won’t be changing for the next 50 years because we like to think we are a democracy but we also like not being one. How else can a journalist be killed and let those who kill her walk away from their crime?