As a follow up, and elaboration of, an article I published in this newspaper on 7 May 2023 on Malta as a dysfunctional state, I would like to add further ingredients that characterize the State of Malta from a sociology of law perspective. Apart from (1) the dysfunctional state, these are: (2) a paper democracy; (3) a parallel government in action; (4) an autocracy combined with an oligarchy; and (5) a system of governance based on concentration of powers instead of a separation of powers.
A Paper Democracy
Malta is a paper democracy as distinct from a truly vibrant democracy. The main difference lies in the fact that, whilst on paper, Malta is characterised as a democracy, in fact it is governed by an autocrat assisted by oligarchs. The office of Prime Minister, irrespective from which political party the incumbent hails, is institutionally designed to concentrate power in that office. Hence, when I use the term ‘autocrat’ in relation to a Prime Minister, I am not referring to a particular person, whoever it might be holding that office, or to the style of governance that such a person might adopt, but to the office itself, that is, the office of Prime Minister that by law and state practice is vested with autocratic powers.
This autocratic style of government imbued in the law and state practice is also combined with an oligarchic style where power is co-shared by the Prime Minister with the parliamentary group, bearing in mind that the Prime Minister controls fully through the whip and, to a lesser extent, through the political party he leads, the parliamentary group.
On paper, therefore, we have all the institutions of a democracy – general elections, local council elections, European Parliament elections, a mechanism to redress gender imbalance in the House of Representatives and another for majority voting, a Parliament, courts, and a few independent offices of the state ranging from the Attorney General and the State Advocate both appointed by the President on the recommendation of the Prime Minister and others such as the constitutional commissions and the Broadcasting Authority, the latter two being hijacked by the political parties represented in the House.
There is also an Ombudsman, Commissioners for Administrative Investigations, an Auditor General, and the Commissioner for Standards in Public Life. But whether their recommendations are implemented, falls very much within the absolute discretion of government to rule upon. The Standards Commissioner decides nothing as he is kept hostage by the Parliamentary Committee for Standards in Public Life. There is then the Permanent Commission Against Commission which has no effective set up of its own to investigate corruption let alone prosecute or supervise the prosecution of corruption cases.
Therefore, whilst all the democratic institutions are there and somehow exist on paper, and we do, as a state, tick all the boxes that indicate a semblance of a democratic state but, behind this flashy façade there is emptiness because as a matter of fact these institutions are at times ineffective. Thus, one must distinguish between a paper democracy – where we obtain a very good grade in the rule of law exam – and a democracy in action – where we fail miserably for what is written on paper does not necessarily reflect how a democratic state is governed. Thus, the democratic façade is there, glittering and shining like gold, but behind it there is only a democratic deficit of the worst source.
A parallel government in action
A parallel government in action is one which, directly or publicly, does not challenge the Constitution and the laws of Malta but pays lip service thereto. Yet, like whitewashed tombs – to borrow an expression from Jesus Christ (Matthew, 23:27) – outwardly government bears an appearance of beauty giving the false impression of operating within the rule of law. However, in concrete terms – like the Pharisees whom Jesus Christ criticized for their hypocrisy – the government works side by side the democratic structures of the state to subvert their proper purpose.
When reference is being made to a parallel system of government, the latter word does not refer only to Cabinet – which this notwithstanding is the main culprit that operates and assumes responsibility for the parallel system of government but other organs, institutions, and offices of state that operate in parallel with themselves. Essentially, they suffer from the Dr Jekyll and Mr Hyde split personality syndrome for at one moment they are acting within the confines of the rule of law, but at another different moment they are acting outside the rule of law. We are thus witnessing the functioning of a state within a state.
For instance, decisions are taken by Cabinet but not all-important information to influence a decision in government is provided – there is no full disclosure of documentation like in a court of law. Decisions are reached not based on documentation made readily accessible but based on trust that one has on another responsible for a particular business of government who might, after all, like the hypocrite Pharisees, be a deceiver.
The institutions of the parallel state have their own unwritten laws that are hierarchically superior to the written laws – be it the Constitution or any other law enacted by Parliament. At other times it is the Prime Minister (single-handedly or through the assistance of a few persons – a Kitchen Cabinet as it has been called), not Cabinet, that take important decisions of state. The motivation of the parallel institutions is not to act in the public interest or for the common good but to grab power and abuse it for purely partisan, egoistic, selfish, nepotistic, and improper use.
Examples from Malta’s constitutional practice abound and my difficulty here is not to provide glaring instances thereof but to determine which examples to leave out due to space restrictions. Suffice it, therefore, to list only a handful.
One instance is where the Constitution is abusively altered without recourse to the constitutional mechanism to change it. There is supposedly a rigid constitutional alteration mechanism but one person can bypass this mechanism with impunity. Take the case of the Prime Minister who, in breach of the Constitution, with the connivance of the President, assigns ministerial duties for the Wild Birds Regulation Unit to the Gozo minister and not to the environment minister. Yet neither the environment minister nor the Opposition cry foul. Their silence makes them complicit with the Prime Minister’s constitutional abuse.
Another instance is where the President did not ascertain whether the Prime Minister enjoyed majority support in the House when there were persistent rumours to that effect or, where a Leader of Opposition failed to muster majority support from Opposition MPs, but the President ignores his constitutional duty written black on white to remove the Leader of Opposition. Another instance is where the justice minister proposes to increase the period of police arrest and detention to five and a half days (from forty-eight hours) when, in terms of the Strasbourg Court’s case law this can never exceed four days and, in certain circumstances, even less.
The same can be said when government proposes in a bill to dilute the independence of the judiciary by compromising magisterial inquiries by legislatively obliging an Inquiring Magistrate at gunpoint to appoint as his/her expert an Occupational Health and Safety Authority officer whom a magistrate might have all good reason not to appoint and who is accountable to the executive.
Another instance is to amend planning laws to allow development outside zone so that a Cabinet member may sanction irregularities whilst another obtains permission outside the development zone. Other instances are where government in parliament enacts laws to nullify court judgments and where government appoints as Arbiter for Financial Services a person that is not fit for purpose in so far as he does not satisfy the appointment criteria established by law.
An autocracy combined with an oligarchy
Malta is an autocracy combined with an oligarchy because, first and foremost, the political system leaves very little space for the citizenry to be involved in the governance of the state. All power is vested in Cabinet and Cabinet is, in turn, controlled by the Prime Minister.
Secondly, the citizenry is very infrequently consulted by the government of the day through a consultative referendum with the main decisions being taken by government not by the people.
Thirdly, the mechanisms that are in place to control the government by the citizenry are either inexistent (as in the case of the possibility to recall an MP by the people or for the people to initiate legislation), or, where existent, no recourse is made thereto as in the case of a consultative referendum, or are weak as with judicial review of government action where the State Advocate – unconstitutionally and in breach of the human right of access to a court – requests the courts, that conveniently comply, to deny access to a court through recourse to constitutional undermining pleas such as lack of juridical interest that is a judicially Private Law doctrine extended wrongly to Public Law that falls foul of the right of access to a court.
All in all, these measures – and others not listed here due to lack of space – contribute to aggrandise the government’s power whilst disempowering the sovereign people and, at times, trampling upon human rights. As government has a tight grip on the running of the country, Parliament and the people pale into insignificance.
Fourthly, government introduces bills in the House of Representatives that are controversial and outside the political electoral manifesto or run counter to the Constitution or to Human Rights Law.
Finally, government is totally unwilling to shed its absolute powers and strives persistently and at all cost to consolidate and retain them with no co-sharing possibility contemplated with the Opposition, civil society, or the people.
A concentration of powers
Power is concentrated in one organ of the state. Government, through its majority in the House of Representatives, controls Parliament and the judiciary in so far as the judiciary do not administer justice but law that is proposed to, and approved by parliament that is dominated by government MPs. In this respect, the judiciary are tools that government uses to impose its will on the citizenry and the courts gladly bow their head to government’s autocratic diktat through judicially construed doctrines that apply the anathema civil procedure institute of juridical interest to Public Law, or by interpreting ordinary laws to be superior to the Constitution, or by delivering judgments that fly in the face of the spirit of the law or prioritize law over justice through positivist interpretations of the written norm.
The three organs of the state (parliament, government, and the judiciary) do not balance out each other once power is mainly concentrated in one organ – government. The fourth estate (the press) and the fifth estate (the new media) have no state power and are not capable of controlling the government. When they do attempt to engage in investigative journalism as opposed to propaganda that is churned day in day out on government’s propaganda broadcasting services (PBS), the result is that they are harassed, beaten up, and even assassinated.
See how much the fourth and fifth estates must suffer in ‘democratic’ Malta to obtain government-held information, notwithstanding the Freedom of Information Act, recourse to parliamentary questions, and questioned asked to cabinet ministers during official activities. Accountability and transparency have been banished from state governance because they only serve to wash the dirty linen of government in public, a measure that is totally abhorred by the government of the day and the political party in government. Indeed, government is averse to the truth and will go to all extremes to hide it, cover it up, and where necessary fake it or manipulate it.
Conclusion
The inevitable conclusion that we arrive at is that on paper Malta is a democracy but in practice Malta is a pseudo-democracy or a paper democracy. In reality, it is an autocracy combined with an oligarchy. The Prime Minister – an autocrat par excellence (not because of his personality but because of the power that he enjoys through law) – has managed to grab the power of the state and through the ministers that form part of an oligarchic regime can control what happens in the pseudo republic of Malta. Like an octopus, the Prime Minister has his tentacles all around the neck of his appointees to public offices, be they government ministers, parliamentary secretaries, persons of trust, Cabinet secretary, principal permanent secretary, permanent secretaries, directors general, directors, governor and deputy governor of the Central Bank of Malta, chairs and CEOs of public corporations, public authorities, government foundations, agencies, companies, and various other office holders whom it is impossible to list here who all know their respective position, and remain forever indebted, to the Prime Minister. Their loyalty is not to the state, its institutions, and its people, but to the person appointing them. There is thus embedded in the paper democracy of the pseudo republic of Malta all the ingredients of a mafia state legitimized through law and state practice.
Kevin Aquilina is Professor of Law at the Faculty of Laws of University of Malta