The Malta Independent 4 October 2022, Tuesday
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The tyranny of the majority

Kevin Aquilina Sunday, 7 August 2022, 07:54 Last update: about 3 months ago

A fundamental difficulty with a two-party parliamentary system like the Maltese is that the majority dictates all the rules, where the winner takes it all as the Civil Court, First Hall, has recently observed. It also develops another phenomenon – the arrogance of power. Those in power think that than can run away with practically everything under the sun. And in Malta this is not just a thought but a reality!

What actually happens in a duopoly where no coalition government exists is that the majority political party transforms itself into the government of the State. This, in reality, means that two out of three organs of the State – the legislature and government – end up controlled by the party in government. It also means that the civil service and other state entities are practically all political party controlled, bar a few exceptions here and there.

It is only the judicial organ that is no so controlled; but the judiciary does have its own problems that benefit government.

First, they take an eternity to give the citizen an effective and timely remedy and procedures are interminable: preliminary pleas, preliminary judgments, retrials, appeals, constitutional court references, etc.

Second, when they do arrive at a belated decision, the remedy is given only to the plaintiff who has requested it and, due to court delays, might end up ineffective. Other persons have to go through the whole process afresh to obtain the same remedy the previous plaintiff got and, in the absence of the doctrine of precedent, there is no guarantee that a new composition of the court will reach the same judgment as it can instead side with government rather than with plaintiff.  Consistency in court judgments is not mandated as evidenced by conflicting judgments delivered by the same court.

Third, the public does not enjoy the faculty to enforce all the provisions of the Constitution through the courts because both the Constitution and the courts prohibit this except in limited cases such as when laws run counter to the Constitution or human rights actions. Even here there is a tortious road to traverse as, in the past, the Office of the Attorney General, and now the Office of the State Advocate, came or will come up with every possible imaginable preliminary delaying plea to nip the case in the bud before it can ever go to trial, let alone, judgment. In the absence of a general action afforded to the people to request the Constitutional Court to enforce the Constitution, the people end up – as the politicians want them – castrated.

The Opposition is nothing but a government in waiting. Once it manages to muster a majority, it continues from where the previous government would have left. Faces change, some policies might even change, but the new political party in government resumes the oppression of the minority. Further, the Opposition is not on a level playing field to the government and does not have an equal chance to get elected because of the power of incumbency that continues to prevail during the electoral campaign with the majority power as the caretaker government. The Opposition plays against the highest odds when all the stakes are in favour of the incumbent political party in government.

With an irrelevant Opposition and a lethargic judiciary, a two-party parliamentary system produces nothing but tyranny. Of course, the state still retains a semblance of democracy. Parliament and the judiciary will continue to function and so will other independent public offices. But, in essence, it is very easy for government to control the independent public officers by either appointing its lackeys to key offices of the state, by not appointing none at all and leaving the public offices vacant for a certain period of time, by appointing those who are afraid of their own shadow, and by ignoring recommendations made by either independent bodies or by its own appointed boards and commissions.

Domestically, it is next to impossible to challenge government for it practically controls everything. The only way how to make it reason out things in the public interest and not in the political party in government interest is through foreign pressure and the independent media. I am not counting the people for their say is extremely limited: they exercise it only once every five years!

But the independent media does not have the necessary clout to stop government from perpetrating maladministration although they can, to a limited extent, make spokes in the government’s wheels. But even the media can be controlled through, for instance, costly libel actions and SLAPP actions, not providing them with access to vital information, inviting only a select few to press conferences, refusing to answer questions or be interviewed, offering journalists more lucrative and attractive positions with government, or cutting or limiting government advertisements to the press.

Foreign pressure, at times can be effective such as the grey listing by the FATF or the constitutional changes of 2020 that government had to pass, very reluctantly, through parliament, because of pressure put by the Council of Europe Parliamentary Assembly, the Venice Commission, the European Union Parliament, the European Union Commission as well as other non-international state entities such as Transparency International, Article 19, Reporters without Borders, etc. Yet, although these initiatives might sometimes produce results, international organisations are not well versed in domestic affairs, would not know the exact details of the laws and procedures and how they are being circumvented by government, and sometimes even finish led by the nose. This apart from the fact that international organisations have no or limited coercive powers upon the political party controlling the whole machinery of government.

The question is: which majority political party is willing to curtail its own powers? The answer is quite obvious: none for the status quo benefits the majority political party and the minority party eyeing political power.

Conclusion: there is no justice in Malta – we are doomed to live under the tyranny of the majority political party in government, whichever one of the two it might be!

 

 

Kevin Aquilina is Professor of Law and the Faculty of Laws of the University of Malta

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