I have officially given up we’ll ever have a Constitutional Convention to discuss the rules of the game. Labour promised it in 2012, ten years ago. They’ve been kicking the can for so long the people looking ridiculous now are the ones still daring to hope it would ever happen. I’m the silly bugger.
Of course, I realise what a nerd I must sound like speaking of a Constitutional Convention with the sort of devout desire a Star Trek fan would have for an altogether different sort of convention. Wanting to talk about presidents and parliaments, courts and tribunals, ministers and departments is a lonely, slightly crazy, socially off-putting proclivity.
We don’t talk about the rules in this country. It’s seen as naff and pedantic even to want to. We just make it up as we go along.
Consider these thundering remarks by Malta’s President yesterday, the clearing of the presidential throat in anticipation of the rise of the phlegm of presidential irritation: “You know very well that the president does not comment on laws that are being discussed in parliament, but…”
For articles about what the president thinks and feels about abortion, go elsewhere. I’m interested in everything in that sentence up to and before the “but”.
George Vella starts with a confession. He knows he’s not supposed to do what he’s about to do. He anticipates any criticism he might get by sweetening his indiscretion with gloopy solemnity. Like a time-traveller who goes back to strangle baby Adolf in his cradle to avoid the great conflagration of their future past, George Vella stops to ask for forgiveness for what he’s about to do. He’s going to step out of the constrictions of his office, he’s going to break the rules, because he can’t help doing so in the pursuit of a greater good: the pursuit of a cause he feels most strongly about.
Pictures of a teary pregnant mother with a moral dilemma come to mind.
Faced by the moral dilemma of whether to stick to the rules of his job or to abuse his moral authority to apply pressure on Parliament to legislate in a manner he personally approves of, George Vella’s choice was the abuse of his moral authority.
To himself he must have justified this by ranking moral considerations. What’s more morally binding, he must have rhetorically asked himself when writing yesterday’s speech? Is it more important to be a good president or to be a good Christian man of conscience and use everything available to me to prevent abortion?
We know what he chose, and his views will find the sympathy of many people for whom it is an urgent and principled mission to resist a law that they, rightly in my opinion, consider to be an undeclared measure to decriminalise abortions.
Why is it that “the president does not comment on laws that are being discussed in parliament,” unless, as happened in this case, the president does?
There are several cogent reasons for this custom. And for clarity, ‘custom’ here does not mean a tradition like eating turkey for Christmas until one year the mood takes us to try a ham. ‘Custom’ is behaviour borne of the collective consensus, tested by time, of the interpretation of Constitutional rules. Breaking with that custom without the evolution of a new consensus is acting outside, beyond, and in breach of the Constitution.
Parliament is the institution that makes the laws of the land. It is directly elected by universal suffrage for the purpose. Built within the design of the system is the representation of divergent views and rules to allow those views to be expressed freely. Decisions are reached either by consensus or, if none emerges, by ballot within the Chamber.
In that system, therefore, you have the dialectic of disagreement and the resolution of democratic voting. It’s not perfect, far from it. I’m not trying to rub away every time I argued how our Parliament is a joke, a puppet of the government’s unaccountable whims. There are a thousand reasons to make changes to the rules of the game to truly empower Parliament to deliver democratically on the function it is entrusted with. That’s why I pathetically clamour for a Constitutional Convention.
I don’t like the rules and I argue they need to be changed.
What I don’t agree with is giving the idea that since the rules are problematic, they can be ignored, and anyone can make up what they can or cannot do in our system as they go along and according to whether the rules are or are not convenient for their personal convictions.
That’s what George Vella did yesterday. “The president does not comment on laws that are being discussed in parliament” because in the current system he is a symbol for the nation and therefore a ceremonial ribbon around the final determination and resolution of Parliament’s will.
Even if we were to reform the office of the president, if we were to retain a Parliamentary system it would be an aberration to have a president intervening in a matter of political controversy while a bill he would eventually be obliged to sign into law is still being debated in Parliament.
If we were to give the president more power and move away from the model of Constitutional Monarchy (which we retained from the 1964 Constitution) and more towards the non-executive presidencies of European republics (like Germany or Italy, say) the president would at most be empowered to refer a law approved by Parliament to a constitutional court for a decision on its compliance with the constitution or even refer a law back to Parliament for its reconsideration on grounds of doubtful compliance with constitutional principles.
Both those possibilities occur after Parliament has deliberated and resolved. An intervention from a state institution outside Parliament while Parliament is still debating would be an outrageous intrusion on its sovereignty and an unacceptable curtailment of its democratic authority.
The president’s opinions or moral convictions could never come into such a consideration, whether during a Parliamentary debate or after it. A non-executive president, like, frankly any other public official, should only conduct themselves based on law not based on what they think the law should say.
It is incredible to me that politicians, or some politicians, seem to regulate their views on the limits of institutional power and their abusive breaching, according to where they stand on the subject matter on the day. Consider how a few Opposition MPs, starting but not ending with Adrian Delia, publicly urged the president to refuse to sign the abortion amendment into law while staying in office.
They were reacting to the muffled signals sent out by the President that he would rather resign than sign the depenalisation of abortion into law. No, Adrian Delia told the president. Don’t sign the depenalisation of abortion into law but stay on as president so that Parliament’s law is unlawfully frustrated.
I am sorry but however strong your views on the preservation of fertilised human eggs under all circumstances might be, justifying a coup d’état, however bloodless, is simply anti-democratic.
What these Opposition MPs are suggesting is that the personal opinions of the president should allow him, or her, to ignore the law. They are saying that because they happen to agree with this president about this law. What happens when the opposite becomes true?
What happens when Adrian Delia and the other MPs urging the president to block the law despite all constitutional requirements that compel him to consent to it, become themselves members of a governing Parliamentary majority and introduce a law banning abortion in all circumstances? What would they do if after adopting such a law a pro-choice president blocks it without any legal basis because they claim their principles do not allow them to sign the law?
What happens if public officials started taking decisions on the back of their personal convictions rather than what the law says?
What happens if judges who feel strongly about adultery send philandering spouses to prison even though adultery in our law is not criminal? What happens if a judge who is particularly angry about a man sexually abusing children orders that the accused is flogged in public even if our law bans corporeal punishment?
What happens if public registry officials refused to marry a couple because they don’t approve of gay marriage? What happens if a doctor refuses a patient a blood transfusion because the medic moonlights as a Jehovah’s witness?
Why do we feel that it is ok for public officials to publicly acknowledge the limits of their power and then, following a “but”, proceed to flout them because they are guided by their own code of principles?
In this country you’re ridiculous if you ask for the rules to be examined and improved. The way we do it here is to go ahead and ignore the rules instead.