When state sovereignty is studied in Public International Law – and this happens in other disciplines as well such as in political science, international relations, and government studies, amongst others, the state assumes several types. Thus, distinctions are drawn between the state and the nation, not to say the nation-state; between an independent state and a republican state; a liberal state and a communist state; a neutral state and an aligned state; a failed state and a weak (or feeble) state, etc. So, the inevitable question that arises in the context of Malta is: how should Malta be classified?
Clearly Malta is a republican state. It is no longer a constitutional monarchy. It is also a sovereign state. It also has an indirect form of democracy where an oligarchy – under the command of an autocratic Prime Minister – administers the country. Few and far between are the occasions where the people have a determining say in the running of the country. In the words of Sir Fred Phillips, although writing within the context of small Caribbean states, ‘It is easy for a Prime Minister, wielding an all-pervasive influence, to manipulate almost everything and everybody, especially since, in most territories, he (or she) is the appointing authority in respect of almost every person or board operating in the public domain’.
Malta has also several other institutions – largely decorative in character that wield no power or no clout but at least we can tick the box when we fill up a questionnaire on the (pseudo) democratic status of Malta. In this respect, we can claim to be equal to other EU states as there is a thin appearance of the existence of such institutions, or, at least, some of them. But the question is not whether we have these institutions ,but whether, if we have them, are they effective? Do they function? Here the problem of classification of Malta’s institutions raises its head. A simple classification would be to divide them into two classes: the effective and the non-effective. Yet, if I were to attempt such a classification, I may end up with having none or, perhaps, a handful in the first category and will have to cut this article short. Hence, an alternative list must be resorted to.
A sixfold classification of state institutions could run as follows: (1) invisible; (2) ornamental-decorative; (3) comatose; (4) hijacked; (5) disempowered; and (6) government complicit.
First, there are invisible institutions. What we do miss, for instance, in more accountability in government; more openness in how government works; more good administration in how the country is run; and, indispensably, more integrity, honesty, and diligence in the political class. This is not to mention that direct democracy is totally conspicuous by its absence in Malta: it takes the form of a ghost that haunts the political class every five years when a general election is held or when MEP and local council elections are held. Otherwise, it is the oligarchy that reigns supreme. We have no right to recall an elected MP; not even the possibility of initiating a referendum to propose a new law or to change an existing one.
Second, there are ornamental-decorative institutions. For instance, since 1988 we have had a Permanent Commission against Corruption that investigates criminal corruption in Malta. This Commission has been with us for around 35 years. Hence, one would have presumed, thanks to this Commission, that: (a) no corruption has since then existed in Malta because of the deterrent effect of the Commission; and (b) in those handful of cases where corruption had occurred, the Commission would have investigated it and the Police taken criminal action accordingly. But, alas, this is a presumptuous presupposition from my end. Neither the Justice Minister nor the Home Affairs Minister have, during the last 35 years, ever published one single Department of Information Press Release to laud how effective this Commission is in its investigations and how much criminal actions have been instituted by the Police thanks to the Commission’s investigations. This is because not even one case in 35 years has been so prosecuted. When corruption charges were prosecuted in court, they were prosecuted at the behest of an Inquiring Magistrate or the Police with no Commission involvement. But at least we can tell FATF, the Parliamentary Assembly of the Council of Europe, the Venice Commission, GRECO, and the EU Commission and Parliament, that we have a Commission in Malta that investigates – even if with no positive concrete outcome – criminal corruption. Even if the Commission were to report to the Minister a case of corruption, there is no guarantee that the Attorney General and the Commissioner of Police will prosecute for the Commission has no executive power of its own and has to rely on other offices of state; once it submits its report to the justice minister, its task comes to an inevitable end.
All the money that has been invested in this Commission is money down the drain. The problem is that there are other state institutions that, though not in a desperate situation as the Corruption Commission, only serve as constitutional ornamental and decorative institutions. The Opposition is constitutionally designed to be an ornamental-decorative institution with no effective power to control the whims and caprice of an arrogant government.
Third, there are comatose institutions, institutions that have the power to act but prefer to do a Pontius Pilate, wash their hands from any responsibility and look the other way. The minister responsible for broadcasting is one such Pontius Pilate. He is fully aware that Public Broadcasting Services Limited is in breach of the constitutional provision of impartiality but, as the competent minister responsible for broadcasting and as the licensing authority of PBS Ltd. does not raise, not even one finger, to ensure that PBS comply with the provisions of the Constitution. And I am not asking much of the minister here – only respect for the rule of law (always if naturally the latter means anything to government).
The history of public state broadcasting since independence has always been under all governments the history of political partisan manipulation of the government broadcaster by the powers that be. Of course, starting with the 1987 PN government, manipulation is not as crude as in the times of Xandir Malta because even politicians have learnt the lesson of history – they have become more sophisticated in manipulation of the airwaves – but still there is no sense of objectivity, fairness, and respect for the rule of law in these services.
Even the courts sometimes fall under this category when they forget that the Constitution is the supreme law of the land and instead apply their own unconstitutional doctrines to subvert the constitution itself. Such is the case when they apply their much favoured Private Law doctrine of juridical interest to Public Law proceedings whereby they nullify the provisions of the Constitution to such extent that it becomes totally unenforceable, though totally convenient for a comatose judiciary that places ordinary law before fundamental law thereby subverting the hierarchy of statutory law. Such doctrine, undoubtedly, is to the great pleasure and rejoice of government. Yet the citizen ends up with a sour deal.
Fourth, there are hijacked institutions. Hijacked institutions are those institutions that do not function so as to achieve the common good they are intended for but to carry out orders from an external authority that can dictate the decision-making process. Such is the case of the Broadcasting Authority, the Public Service Commission, the Electoral Commission, and the Employment Commission where the membership thereof is partitioned between government and opposition. Their actions and decisions are not always dictated by the common good but by the partisan self-interest of the political parties in government and in opposition that the members of these institutions represent.
Fifth, there are the disempowered institutions. These institutions have something missing – the power to decide – even though they are independent from the government. They have to be distinguished from the courts who have the power to decide but, through occasional senile dementia, forget that they have such power, especially where the respondent happens to be government. Take the case of the Ombudsman who recommends action but has no power to enforce his recommendations when he is – as is invariably the case – ignored and left in the cold by the House of Representatives.
Take the Commissioner for Standards in Public Life who decides nothing apart from when he declares that a complaint is unjustified and that the accused MP was in full observance of the Code of Ethics, thereby leaving the juicy complaints to be decided (if this is an apt word to use in this context) by a bipartisan Select Committee of the House that so far has tended to rule in favour of the offender and not of correct political ethical behaviour.
Then there is also the Auditor General that has not much clout – it continuously dishes out reports on financial impropriety by the public administration in all its colours and shades but no disciplinary, criminal, civil, or political responsibility ensues. Has ever a Principal Permanent Secretary, Permanent Secretary, Director General, Director, or under Head of Department, or other state entity howsoever called under whose watch financial impropriety happened ever been disciplined, removed from office, or prosecuted in court? Has any minister shouldered political responsibility? Of course not. It is a sacrilege, rude and vulgar to ask for such action. These reports are only intended for guidance, filing, and after the lapse of a period of time, shredding.
Sixth, the government complicit institutions comprise the Office of the State Advocate, civil service, and the public sector entities enjoying no independence from government. All these are loyal to the government of the day and are in competition amongst themselves to demonstrate their absolute zeal in unconditional submission, unquestionable obedience, and blind loyalty to the government.
Bearing the above in mind, the conclusions are: (1) there is no direct democracy in Malta; (2) some institutions are dependent on government and sometimes on the opposition; (3) some institutions do not have the necessary power to enforce their recommendations and when they do have that power they shy back or prolong decisions indefinitely when government is involved; (4) certain institutions are decorative-ornamental and are totally useless at achieving the purpose for which they were originally established; (5) enforcement is very lacking and action is taken not to apply the law but to disapply it in full breach of the rule of law through non-institution of proceedings or other enforcement measures; granting amnesties to repetitive law offenders, providing accommodating extensions for compliance to recidivist law breakers, or amending the law to legalise what is otherwise an illegal act; and (6) overall, the question that has to be determined is whether Malta is a weak (or fragile) state; a failed state; or some other concoction. From the above, it can be safely stated that Malta is a dysfunctional state where the institutions either do not exist or, exist only on paper, or where they do exist, they do not function as intended, or where they have the power to function, fail to exercise it or exercise it against the citizen unjustly.
The conclusion therefore is, and cannot not be, that the Banana Republic of Malta is a dysfunctional state, an autocracy, that is ruled by an oligarchy not for the common good of society but for the selfish interest of a few. Government’s claim that institutions are doing their job has to be debunked for whilst Cabinet is living in cuckoo land (or is it now piggy land?), we who are not detached from reality know that it is light years away from the truth.
Kevin Aquilina is Professor of Law at the Faculty of Laws of the University of Malta