In the last three years, government, opposition and civil society activists have ridden on the 'rule of law' wagon. Only a few days ago, the new Prime Minister, Robert Abela, has pledged to strengthen the rule of law, implying that the rule of law in Malta is strong as is. The opposition and civil society activists disagree.
In its 2019 report, the anti-graft watchdog Transparency International reported that "In Malta, corruption is undermining the rule of law". The Council of Europe's Committee on Legal Affairs and Human Rights also noted "a series of fundamental weakness in Malta's system of check and balances… (is) seriously undermining the rule of law".
But what it is that they mean by 'rule of law'? The legal philosopher and jurist, John Finnis, describes it as "[t]he name commonly given to the state of affairs in which a legal system is legally in good shape". But what makes a country in legally good shape? Judith Shaklar, a philosopher and political theorist, suggested that the phrase "may well have become just another one of those self-congratulatory rhetorical devices that grace the public utterances of Anglo-American politicians…"
The much-revered British Judge and Lord, Tom Bingham, identified eight sub-rules to flesh out what the rule of law is. In the limited space I have, and where possible, I attempt to reflect on these principles in light of the recent political events in Malta.
The first sub-rule refers to the clarity of the law. Heavy worded legislation which leaves any person, especially the layman trapped with legalities detracts from the legitimacy of the law. How many of us struggle with fully understanding the language in statutes? The courts have more than once identified discrepancies between the Maltese and English version of the law; when this happens, the Maltese version supersedes the other.
The law should afford minimal discretion to those using it. Government officials should "ordinarily" apply the law as is rather than exercise discretion. The looser the discretion, the greater subjectivity plays an active role in decision making. Tightening of legislation, lessening discretionary powers is essential to avoid violations of legal rights.
Lord Bingham's third sub-rule reads, "the law of the land should apply equally to all, save to the extent that objective differences justify differentiation". Then, one legitimately asks how can the former Chief of Staff, Keith Schembri, former Prime Minister, Joseph Muscat, and former OPM employee, Neville Gafa, be still out and about? How has, and can, the resignation from their respective position tantamount to absolution? How were all the allegations of money laundering reported by the FIAU not investigated by the Police Commissioner?
"Adequate protection of fundamental human rights" is the fourth rule in Lord Bingham's exposition of the rule of law. This comes as no surprise to most, but how many times do we as individuals pick and choose which human rights we endorse and promote? How is it that the right to freedom of expression and assembly are indifferently threatened by politicians? How is it that we can tolerate migrants to be treated in an "inhumane and prejudicial to the presumption of innocence principle" (ADITUS foundation, Integra Foundation, Jesuit Refugee Service, joint statement, January 2020).
Moving on to the fifth sub-principle. Having procedures in place is as important as their recourse being affordable. Pilatus Bank whistleblower Maria Efimova has recently set up a go-get-funding page to raise funds for her application for whistleblower status and examination of forensic document fees raises a red flag? Is our legal system a commodity for the few?
It is the sixth principle that I suggest we are struggling most with. I quote directly from Bingham's paper on the rule of law: "Ministers and public officers at all levels must exercise the powers conferred on them reasonably in good faith, for the purpose for which the powers were conferred, and without exceeding the limits of such power". This implies the need for a well-established judicial review and a checks-and-balances system. Where not in existence or weak, it is farcically easy for any government official to engage and coordinate corrupt transactions, undermining the public good.
The penultimate principle ties up nicely with the above. It advocates for the fairness in procedures provided by the state. Adjudicators must be independent and impartial. "Not only justice must be done; it must also be seen to be done". The Prime Minister selects Malta's judges and magistrates. He also appoints the police commissioner. We have had a number of magistrates and judges who recused themselves from hearing cases or leading inquiries: Madam Justice Consuelo Scerri Herrera and Judge Aaron Bugeja from hearing the appeal case on the magisterial inquiry into the Vitals Deal, and more recently Magistrate Nadine Lia from the compilation of evidence against Yorgen Fenech, who was charged with being an accomplice in the assassination of journalist Daphne Caruana Galizia.
The last sub-rule requires that states comply with their obligations in international law deriving both from treaty and practice. If we do not do so, Malta risks struggling in international markets, for example. In fact, Malta is now viewed as a high-risk jurisdiction according to BOV’s new CEO.
These principles, I suggest, should guide us professionals, citizens and activists alike in our work to restore the rule of law in Malta. We must first explore and endorse these principles. Then and only then can we meaningfully invoke it and perform our civic duty and share the knowledge with others.
Dr Mark Josef Rapa holds a Doctor of Laws degree from the University of Malta and Master of Laws degree in Health Care Ethics and Law from the University of Manchester.