The rule of law à la maltaise is the title of a book I have just published. I consider the rule of law to be paramount to a civilised democratic society. À la maltaise(the Maltese way of doing things) has had to be added to the book’s title precisely to distinguish the theoretical concept of ‘the rule of law’ from the way it is practiced in Malta. The book was not conceived as a theoretical treatise on one of the most fundamental principles of Constitutional Law. On the contrary, it is a collection of already published material with a common theme – the rule of law – but with a main difference: it is a case study of how the rule of law has been, and continues to be, misapplied in Malta by the three organs of the state (Parliament; Cabinet; and the Judiciary), other state entities and even by the Civil Society Network.
It is this practice which gives the rule of law its characteristic flavour. This notoriety derives from the wayhow lip service is given to the rule of law without any concrete intention of living by its tenets. This is because whilst state institutions, political parties and others portray themselves as ardent upholders of the rule of law, an analysis of their behaviour (not to say misbehaviour) indicates otherwise.
This book is thus a (far from complete) collection of unhappy episodes where the rule of law is honoured more in its breach than in its respect.
Defining the rule of law
To put it succinctly, the rule of law simply means that people should be regulated by the law.It is not a question of the law of the jungle where the survival of the fittest is paramount, but respect for the supremacy of the law. In its elaborate formulation it requires, inter alia, safeguarding of fundamental rights and freedoms; upholding the separation of powers and the independence of the judiciary; allowing easy access to the courts, providing for legal certainty; curtailing administrative diktat; respecting minority rights; implementing an effective system of judicial review of administrative action; fostering transparency, openness and accountability in the workings of all state institutions; granting access to government-held information; empowering a free press; and enforcing laws proportionately.But this is a far cry from what really happens in the field. Hence theory is onething, practice is an all-together distorted vision of theory.Flipping through the book, the reader will come across instances where the rule of law is contradicted. Let me exemplify.
By Parliament
By ‘Parliament’ I mean by both government and the Opposition and by ‘opposition’ I refer to the majority party in opposition, the Nationalist Party. Take the case of the Constitutional Reforms (Justice Sector) Act, 2016 – clearly in breach of several pronouncements of the European Court of Human Rights –is voted upon by both government and opposition notwithstanding the principles of the rule of law, the separation of powers and the independence of the judiciary. All these principles are thrown overboard by the legislator.
By Government
Recourse to positions of trust to employ people in breach of the Constitution, notwithstanding the Public Service Commission’s and the Ombudsman’s criticism of this unconstitutional practice, continues to form part of government’s maladministration under both Nationalist and Labourite administrations. The same applies to direct orders which, rather than being exceptional, tend to be the order of the day where no competitive process takes place and the awardee is handpicked by the government authority involved with no transparency afforded as to the reasons justifying such decision. Again, the general prohibition of discrimination protocol no. 12 to the European Convention on Human Rights came into effect in Malta on 1st April 2016 but government recklessly fails to incorporate it in Maltese law denying citizens their right to have recourse to the Maltese courts in the cases of discrimination regulated by that protocol.
The government also makes subsidiary law in breach of primary law enacted by Parliament and when the Opposition attempts to rectify the matter, not only Government MPs vote against the motion but even some Opposition MPs abstain from upholding the rule of law in relation to the supremacy of Parliament over the government, the separation of powers doctrine and good administration.
By the judiciary
The judicial fails to adopt a sentencing policy to ensure legal certainty in the infliction of punishments. At other times it dishes out conflicting judgments, as in the case of the institute of arbitration, which bring about total and complete uncertainty in the law, not to mention cases where the judiciary ignore a clear provision in the Constitution and base their judgment on an inferior law to the constitutional provision.
By political parties
By their conduct, the Nationalist Party and the Labour Party consider themselves above the law. They enact in Parliament a law to regulate the financing of political parties but both are the first to breach it. On its enactment, the Labour Party had already failed to amend its statute to bring it in line with this law and the Nationalist Party accepts donations in breach thereof. Not to have such a violation disclosed, the Nationalist Party is nowchallenging the law on constitutional grounds in the hope of winning the case so that their violation of the law is neither investigated nor rendered public and buried under the carpet.
By state entities
Air Maltarequests the court to issue a blanket ban on recourse to any form of industrial action where the trade union representing pilots resorted to industrial action consisting in not wearing their full uniform on duty. Although the pilots’ union was thinking of further escalating their industrial action, the company requested, in a disproportional fashion, a total ban on industrial action of any sort. Not wearing the full uniform is not conducive to Air Malta running bankrupt! Hence a blanket ban on resorting to any form of industrial action, not necessarily strike action, is unacceptable from the proportionality and freedom of association perspectives.
By the Civil Society Network
The Civil Society Network calls upon the Prime Minister to remove the Attorney General and the Commission of Police from office. Whilst campaigning for upholding the rule of law – and that is undoubtedly commendable behaviour – the Civil Society Network calls upon the Prime Minister to act in breach of the rule of law, to violate the Constitution and to contravene ordinary law (the Police Act). How can the Civil Society Network vehemently request state institutions to comply with the rule of law when they themselves are putting enormous pressure on the Prime Minister to ride roughshot over the rule of law?
Institutional failure
In my book’s preface I write that: ‘At the moment the rule of law in our country is at the crossroads and it tends to be taken for granted to such an extent that it ends up breached by those same institutions of the state which are called upon to promote, preserve, defend, nourish and safeguard it. I attribute the inadequacies of the rule of law primarily to institutional failure – failure by the institutions of the state to carry out their lawful duties with full respect to the observance of the law’.
The Rule of Law Scoreboard
If a Rule of Law Scoreboard were to be adopted by the European Commission, I do not think that we can claim to have a ‘state of art’ rule of law in Malta. I much fear that we will be somewhere at the bottom end of the list of member states given a bad state of health certificate for our imperilled democracy. This, of course, is not something to be proud of.
The Way Forward
We will get to know whether the two main political parties in the House of Representatives are in good or bad faith depending on their actions next year. Will they come together to address this matter? The Constitutional Convention should provide an excellent forum for redressing all the past and current maladies of the rule of law. My fear is that the Constitutional Convention will either not come, or, worse still, come and go and all the bad practices we have been accustomed to during the last fifth-three years of being an independent state will end up being constitutionalised.
So we will continue to have the judiciary appointed, promoted, disciplined and removed by our political masters, positions of trust will be enshrined in the Constitution, new financial provisions in the Constitution will ensure that direct orders should invariably prevail over the tendering process, that back bench MPs should continue to be allowed to act as Government advisors and attend Cabinet meetings, that nepotism and clientelism are embedded within the Constitution as fundamental principles of state governance and that appointments and promotions are dished out not on the basis of merit but on the basis of political party membership and/or sympathy. This is not the Constitution I aspire for republican Malta but I fear that this is what I will have to swallow.
Professor Kevin Aquilina is the Dean of the Faculty of Laws at the University of Malta