Why the need to reform the Constitution?

This is a fundamental question which we, The People, need to answer.

Do we need to reform it to ensure the citizens’ pursuit of happiness?

To overhaul the balance of powers among State organs?

To update our State to the post-Cold-War, globalised world?

To redefine our democracy?

To reshape the political class?

None of the above?

 

The language question

Let’s call a spade a spade. It is impossible to do justice to these points in an article for a newspaper – an English-language newspaper, to boot.

If we are to own up and confess the truth, then we have to admit that the Language Question has never been satisfactorily resolved. We still use Maltese to convey messages meant for a certain social class and English for other classes. It could be argued that the British do something similar: they use different language registers for different classes. The tabloids that used to publish topless models on their page 3 probably use a different type of English from those that refrained from following this ‘British institution’. (Incidentally, The Daily Star newspaper discontinued this 44-year-old tradition last April; The Sun did so four years ago.)

But if we really use written Maltese to pontificate to one social class and written English to sort of debate in others (and then spoken Maltese to pontificate and debate ‘nationally’), I wonder what type of debate we are really engaging in, in this country – particularly when the Constitution has to be the Constitution of the entire nation. It seems as if we are deliberately leaving a segment of The People out. Why?

You might ask me: why do you write in English? There are three answers to that question:

1. There is no Maltese-language newspaper that is not the mouthpiece of an organisation.

2. I like this newspaper. (I particularly dislike Salvu Balzan’s gutter-press paper, mostly because of the lack of ethics repeatedly shown by its editors, present and past.)

3. I have written two books on politics in Maltese, so I write in both languages. In those two books, I did not pontificate, but tried to engage in debate with my reader.

Be that as it may. The big problem, which we as a nation have not resolved and seem to have given up on, is that English still enjoys the prestige associated with the colonial administration. The implications of this psychological phenomenon are numerous, far-reaching and beyond the scope of this article, but they do deserve to be identified and discussed.

 

Small nation problems

We are a small nation and, as such, have problems that larger ones do not. Or else we have them, but the way we express them is different, again because of our size. There was a series of Italian books – a collection of TV shows punch-lines – called Anche le formiche nel loro piccolo s’incazzano (‘Ants too, in their small way, get pissed’). We Maltese are like those ants.

So, do we Maltese need to change our Constitution to find, in our small way, our solutions to the problematic State-citizen relationship? Or does the need lie elsewhere?

Late last year, Giovanni Bonello published a book entitled Misunderstanding the Constitution which, when I reviewed it for this newspaper, I hailed as the most important book of the decade. In this book, Judge Bonello points out that the present Constitution could be really useful in the citizen’s pursuit of happiness and the reigning in of political arrogance, if only it was properly understood. If this is indeed the case, and the present Constitution is indeed useful if properly understood, why re-write it? Why not implement the provisions of the current Constitution?

(During a radio programme this week, Judge Bonello said: “Better a wretched Constitution in the hands of good people, than a good Constitution in the hands of scoundrels.”)

 

The pursuit of happiness

Last week, I wrote about this phrase, a cornerstone of American constitutional thinking which, directly or indirectly, inspires almost all nations around the world. Who would not want to live in a happy nation and be given the opportunity to seek (and find) individual happiness in this world?

In a previous article, I took inspiration from the late Italian philosopher Luciano de Crescenzo and the distinctions he drew between the Epicureans and the Stoics. The former seek happiness in this world; the latter are ready to postpone happiness in this world to then attain it in the next.

To my mind, the Epicureans have won the day in Western constitutional thinking: the pursuit of happiness refers to this world.

(The solitary exception might be Britain. Britain’s Constitution might not actually promote the pursuit of happiness.  Although it is difficult to say, because its Constitution is not written, the subtext to much of the Brexit discourse seems to indicate a craving to be allowed to pursue happiness in a country fraught with privilege and class.)

So will the pursuit of happiness be the lynchpin of the new Constitution project? But if the answer is in the affirmative, are not the provisions against discrimination found in the current Constitution already a guarantee that happiness may be freely pursued in this little republic of ours? Why re-invent the wheel?

 

The Prince

Or will the objective be to show the Prince out and show a real Prime Minister in?

What do I mean by this?

According to the written provisions of the current Constitution, the Prime Minister is primus inter pares. This Latin phrase means that the Prime Minister is ‘first among equals’. But is this true? Does our constitutional system treat the Prime Minister as a First Minister who leads the other Ministers or does it regard the Prime Minister as a Prince served by Ministers who carry out his will? Or is he somewhere in-between these two positions?

To my mind, the primus inter pares notion is a dead letter, an ideal never achieved, a model imposed by the foreign master and dutifully binned by the local obedient servant. The country’s real Constitution – the living, historical, unwritten Constitution – lays down that the nominal Prime Minister of Malta is, in terms of realpolitik, the Prince of Malta.

 

Le roi de France est empereur dans son royaume

In the Middle Ages, French legal scholars came to the conclusion that “the King of France is an emperor in his own kingdom”. By this they meant that the king enjoyed the absolutism that the Roman Emperor enjoyed under the Code of Justinian. French scholars elaborated another constitutional principle: “Rex solutus est a legibus” – “The king is released from the laws”. Or, to put it differently, the king is above (and therefore released from) the law. 

“Absolutism” means that the powers of the monarch were, more or less, unchecked. This was the ideal to which the French king aspired under the ancien régime. In reality, there was always a tug-of-war between the king and other political institutions in the country, but that would be political analysis. What we are trying to do here is constitutional analysis – that is the theoretical framework within which the political system should exist and function.

The Order of St John – which ruled over our forefathers from 1530 to 1798 – was heavily influenced by France. It was only natural that the Prince Grand Master should model his government on that of France and thus live and rule by the notion that “the Prince of Malta is an emperor in his own principality”.

The Prime Minister of Malta seems like a continuation of the Prince Grand Master, of the ‘Sultan’ as the Maltese used to refer to the Grand Master. The power to hire and fire that the Prime Minister currently enjoys makes the holder of that office extraordinarily powerful, consequently threatening the balance of power between the different organs of the State.

I once personally heard Dom Mintoff himself make this comparison during a public meeting in 1995, when he explicitly said that, as Prime Minister, he always kept the Grand Masters as his political yardstick. I believe many observers had already made that connection before Mr Mintoff owned up to it himself.

Modern ideas on constitutions are the result of the battles – not only ideological but also physical – fought two or three centuries ago between absolutist monarchs and those among their subjects who sought to contain the powers of their monarch: hence the term ‘constitutional monarchy’.

We are – again I have to use the same words – nominally a republic, but in reality a sort of very weak constitutional monarchy. Our Head of State, the President, is ‘elected’ by the People’s Representatives and does not hold the office for life. But that’s only nominal. Our State, I contend, is in reality an ancien régime quasi-absolutist monarchy which, influenced by Modernity, has become a (weak) constitutional monarchy and in which the monarch is not the President, but the Prime Minister.

 

Nominal versus real

Many years ago, somebody told me that, despite the provisions of the 1973 law that regulates merchant shipping, people in the sector behave according to ‘unwritten rules’ and ‘tradition’. I don’t know if this really was – or still – is the case, but the analogy fits like a glove. The law might say one thing, but the people do something else. Which obviously leads to the question: why have a written law if it is flouted?

The answer could be: enforceability. As long as there are no disputes, the unwritten rules can effectively hold sway. But if a dispute does arise, then the codified, written law will (or, in theory, should) determine the outcome.

Our current Constitution might have the correct provisions in it to avoid having the Prime Minister rule as though he were an ancien régime, that is to say absolutist, Prince. But, because of tradition and the living constitution of the people, the written Constitution is not understood. (This consistent misunderstanding is Judge Bonello’s thesis in that very important book to which I referred above.)

Re-writing the Constitution might help to achieve the implementation of the principles needed to evict the Prince from the Prime Minister’s office. Then again, this is revolutionary and it might be that the incumbent’s heart is not in it. Unless, that is, he wants to bequeath this particular legacy to his direct successor: a less powerful – a constitutional – premiership.

He will bequeath this legacy with the same mindset that a pampered child grudgingly hands over his preferred toy to another child in the kindergarten, when his/her time to play with it is up.

 

My Personal Library (62)

It’s August. Let’s take it easy for once. Anche le formiche nel loro piccolo s’incazzano (“Ants too, in their small way, get pissed”) is a series of seven books published in the nineties, a veritable encyclopaedia of TV show jokes and wisecracks. The authors, Gino Vignali and Michele Mozzati (aka Gino & Michele), have scripted TV shows such as Drive In and Zelig, and worked with big names in Italian entertainment such as Antonio Ricci, Aldo Giovanni e Giacomo, Antonio Albanese, Checco Zalone, Enrico Brignano and Claudio Bisio.

Some of their jokes are language-based and would lose their comedic effect in translation. For example: ‘My father once told me, my son, you’re not a ball. You’re the other.’ This is gibberish in English, but cracks you up in Italian. Here is a handful of translatable wisecracks from the books (translated for your delectation by yours truly):

“A beautiful showgirl broke up with Berlusconi the first time she saw him naked. She was disgusted at the sight of him without his wallet.”

“In Russia things are really changing. I’ve seen children eat Communists.”

“This weekend I went to a disco and saw the most beautiful girl ever. Our eyes met and twenty minutes later we were in bed. Yes, she in hers, I in mine.”

“Pure-breed Lombards are gaunt, to the point, precise. They are meek but tireless workers. They are a tough people, a people who, to avoid paying even a lira of tax to the central government in Rome, would rather buy a Porsche Carrera.”