What can be said about the late Guido de Marco that has not been said already?
Honour, tribute and homage have been paid to his memory in doses that make it difficult to find anything new to say apart from personal experiences, or weaknesses from which no human is spared but which are out of place in an obituary.
Guido always impressed me with his warmth whenever we met. He was invariably happy to meet me and was always ready with an unmerited eulogy on some piece I had written. He really had a knack for making whomever he met feel important. One always parted from him with a wish to meet again soon. On assuming the presidency, which was roughly at the same time I published a book on Malta’s future relations with the EU, we had exploratory discussions on possible ways in which Labour could be less confrontational about EU membership and how his presidency could become acceptable to Labour and so enable him to operate as a unifying force in Maltese politics. Regretfully, no progress was registered on either issue, but surely not for lack of trying on Guido de Marco’s side.
What can be said about the divorce issue that has not already been said? The Curia’s Pro-Vicar Fr Anton Gouder did find something new when he stated categorically that voting for divorce would be a sin, without entering into the merits of whether he was referring to a referendum vote, a parliamentary vote or to both. He also expressed surprise that surveys show that 15 per cent are still undecided about such an important issue, and disappointed that 40 per cent have expressed themselves in favour.
Fr Gouder can pontificate as much as he wants about divorce, but as someone responsible for where the Church is going, he should well ask what relevance the Church will have in our daily lives a few years down the road if, even today, 55 per cent are not completely against divorce and if a larger percentage in the under-55 category are prepared to consider divorce positively, if legislation carries safeguards to ensure that it is only accessible to those whose marriage has broken down irretrievably, with due precautions to safeguard the children’s rights.
There is one thing Fr Gouder and I probably agree upon for different reasons: that divorce should not be decided through a referendum. Fr Gouder should be against a referendum to avoid having a wholesale commission of mortal sins on the scale of the 1960s. Personally, I am against a referendum because I consider divorce to be a right of the individual and such rights should not be agreed to or denied based on the will of the majority. If we hold a referendum on divorce, we can just as well have one on whether we should continue to pay unemployment benefits or social assistance.
If our political class cannot take responsibility for doing what 40 per cent of us demand without any imposition on the remaining 60 per cent, then let the divorce issue mature under its own steam without a referendum, which would give us the worst of both worlds: a large segment of the population committing mortal sin without resolving anything but simply postponing the problem for the next generation, who will one day laugh disdainfully at our narrow-mindedness.
And if the Fr Gouders of this world are screaming that divorce desired by the 40 per cent would be imposed on the remaining 60 per cent, as they would be living in a divorce-minded society – even though they would not be personally obliged to make use of its availability – I wonder what difference this would make to the 60 per cent who are already living in a separation-minded society with a jungle law for unwedded family units.
On the contrary, there is a lot to say about the proposal to raise the retirement age for judges from the present level of 65 years. The suggestion made by retiring Mr Justice Carmel Agius is not without merits but also has negative connotations that cannot be ignored.
It is true that in many countries judges retire at a greater age and that supreme court justices, court of appeals judges and district court judges in the USA are appointed for a life term or until they voluntarily resign.
Such open-ended appointments are risky in a local context. The judiciary is the third branch of government. Unlike the first two branches (the legislative and the executive), the judiciary is not subject to constitutionally demanded periodic validation through democratic elections. Without age limits the judiciary will have an unchecked mandate that defies the essence of democracy.
One could argue in favour of a higher retirement age, but only if such a measure is accompanied by limits of minimum age to qualify for appointment. To my mind, 10 years is the ideal time a person should spend in such important positions, be he a Prime Minister or a Chief Justice. If a person does a good job for 10 years in such a position of high responsibility, he ought to be exhausted and looking forward to retirement and to letting new blood in. More than 10 years in the same post, human nature being what it is, the decision-making process of a rational person tends to become irrational: from objective it shifts to subjective, and from analytical it morphs into assertive.
Retirement age for judges is the only control we have to ensure that members of the judiciary do not grow too comfortable in such a position of high responsibility. If longevity means that judges can continue performing effectively till age 70, then a 10-year maximum term should be imposed. Retirement at 70 would be the maximum for a judge appointed to the bench at age 60.
And the method for appointment of the judiciary has to be more challenging than the present system of a simple unilateral decision by the Executive. Some parliamentary screening will surely add value and transparency to the appointment process.
Retirement does not mean all valuable experience will be lost. Legal research and publications need not stop with retirement. And there are other positions for which retired judges could be considered, like a former Chief Justice is doing as Ombudsman. There is still much to say about this.
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