There are probably two ways of defining a nation. Either as a group of people sharing the same language. Or else, a nation as a group of people sharing the same history. Both imply that the group is happy with the sharing.

Then there can be concentric circles. One could belong to a linguistic group with a shared history which itself belongs to a larger linguistic group with its shared history. Take Sicily and its relationship with Italy, as an example. The Sicilians have their own history and language, but they also share (at least a part of their) history with the other Italians.

In the case of Malta, local identity and national identity are one. And both history and language are shared by the entire population (whether happily or not, that’s another question). So there is no need to define the “nation”.

Which makes it easier, in theory at least, to conceive the idea of a national constitution for the national State.

The problem, needless to say, is how to work out the rules which are to govern and run the State.

It is clear that this has become an urgent national priority, also because of the breakdown of the rule of law. Whether the breakdown is real or perceived makes little difference. A perception can become a self-fulfilling prophecy, so it follows that urgent action is needed in either case.

To my mind, all of this raises three questions.

 

1. The Rule of Law

 Whereas I admire those who are insisting on the necessity of a restoration of the rule of law, I am not sure that the basic premise of the argument is clear to all.

It has to be clear to all because Malta is a democracy based on universal suffrage. It would be an unnecessary luxury to alienate any part of the electorate at this moment. The project has to include an explanation – accessible to all citizens – as to why the rule of law is not some airy-fairy concept understood only by a certain class possibly viewed as hoity-toity by the other classes. The message has to be conveyed that the rule of law is one of the essential elements of a well-oiled State machinery. And, as a logical co-premise, that a well-oiled State machinery is in the interests of everybody.

How this can be achieved in a country with a deeply-embedded notion of political patronage – the only natural remedy to a State machinery prone to jamming – remains to be seen.

Then again, one has to consider the possibility that it might be in the nature of the State itself that without political lubrication, the wheels cannot turn.

So, the long and short of it is that the rule of law has to be explained, in popular terms.

 

2. The question of sovereignty

Our present constitutional document, inspired by the unwritten constitution of our former colonial masters, does not explicitly state who is sovereign in Malta.

The battle waged by the Nationalists in the 1980s was entirely premised on this point: who is sovereign in Malta: the written rules of the constitution or the People?

The British constitution somewhat fuddles this issue, and thus also ours. Because, to borrow somebody else’s way of putting it, it was an arrangement “made by gentlemen for gentlemen” – it did not consider the possibility that the State might end up in the hands of people who are not “gentlemen”.

I would add that it is also due to socio-historical reasons. Britain, the cradle of liberalism, was governed by a certain class which, at a particular moment in time, understood that it had to share its wealth with the other classes, ushering in the Fabian model of the labour movement. At the same time let us not forget that, at least in the first half of the 19th century, some Tories were hugely concerned with working conditions, and similar “social” issues. Some of these people were inspired by religious principles or sentiments, others by other considerations.

The Italians had a different historical experience. Their State was taken over by a dictator and his totalitarian regime in the 1920s and their post-War constitution reflected, and reacted to, this traumatising experience.

Our constitutional document opens with a statement which echoes the first part of article 1 of the Italian constitutional document: The Republic is democratic and is based on work.

But our constitutional document did not echo the second part of article 1 of its Italian counterpart. This second part explicitly states that sovereignty belongs to the People, which exercises it in the forms and the limits of the Constitution. Our Constitution instead refers to the respect for the fundamental rights and freedoms of the individual.

Are the two concepts – fundamental rights and freedoms, on the one hand, and exercising sovereignty in the forms and limits of the Constitution, on the other – the same thing?

I doubt it. My gut feeling tells me that when the Prime Minister’s Chief of Staff opened a secret company in Panama, he did not harm our fundamental rights and freedoms. What he harmed was the Constitution of Malta, and the spiritual well-being of the nation.

 

3. The Spiritual Well-Being of the Nation

The Italian Constitution, in article 4, speaks of this strange, possibly airy-fairy concept.

It imposes on every citizen the duty to carry out an activity or function which contributes to the material or spiritual progress of society.

What material progress is, can be easily understood by everybody. What constitutes “spiritual progress” is another story. Furthermore, the implied link between matter and spirit should also feature in the understanding of this constitutional provision.

To my mind, it is undoubtedly a phrase we can learn from: “the material or spiritual progress of society”. My instinct tells me that it could lend itself well to the notion of rule of law.

Then again, it’s almost politico-legal poetry.

It would surely sound jarring to the ears of an Englishman. It’s too flowery, too theatrical, too ... Italian.

But that’s because of history. And frankly, the history of neither Britain nor Italy is our history.

Yet we can learn from both of them.

 

History

At this particular juncture in the life of our young nation, I think we need to learn from three historical sources. Our own, that of our former colonial masters, and that of the people who are culturally closest to us.

This does usually happen, although it seems to me unconscious. I think we now need to make that process emerge from the depths of the unconscious and take its place above the surface, in the space inhabited by conscious analysis.

Slavoj ?i?ek loves emphasising that there are four kinds of knowledge. We know what we know. We know what we don’t know. We don’t know what we don’t know. ... But, sometimes we also don’t know what we know.

I think that in terms of constitutional workings, we need to codify (make known) what we know but we don’t know that we know.