Erosion of our democracy

Twenty-five years ago when the Nationalist Party (PN) came to power, it was being championed as the saviour of democracy. Today, the events of the last six months in Parliament make one wonder whether the PN is defeating its own democratic credentials by trying to cling on to power at all costs.

… the current political situation is untenable…- Ivan E. Sammut

Before last week, the PN had this year only enacted three Bills and had taken only one vote in Parliament. Can a modern democratic Parliament function in this way? I believe not.

As Constitutional law author O. Hood Phillips states: “… The rule of the law is preferable to that of any individual. …(it) precludes arbitrary action on the part … of members of the government…”.

Democracy and the rule of law are the pillars of modern democracies. The Council of Europe, of which Malta has been a member since 1965, seeks to develop throughout Europe common and democratic principles. On January 23, 2008 the Parliamentary Assembly of the Council of Europe (PACE) adopted Resolution 1601 (2008) regarding procedural guidelines on the rights and responsibilities of the opposition in a democratic parliament. The preambles to the Resolution encourage member states to endeavour to establish Parliamentary rules to promote a free and pluralist democracy.

They state: “The democratic quality of a parliament is measured by the means available to the opposition or the parliamentary minority to accomplish its tasks… Establishing a fair legal and procedural framework and material conditions enabling the parliamentary minority to fulfill its role is a prerequisite for the good functioning of representative democracy… The Assembly invites the parliaments of the member states to reform or update their rules on the rights of the opposition or parliamentary minority and encourages them to draw up a charter on the rights of the opposition, or to define the status of the opposition in parliament, taking inspiration from the guidelines below”.

Not only has the PN not taken heed of this invitation to update the Parliamentary Standing Orders which were last amended in 1995, but through its actions is seriously jeopardising the well-functioning of democracy.

PACE’s guidelines to be followed by national parliaments are:

The opposition shall participate in the supervision, scrutiny and control of the action and policy of the government and shall have the right to:

Interpellation… and to move a motion of no confidence;

(ii) request the convening of a plenary sitting of parliament, which should be granted if a quorum of one quarter of members is reached;

(iii) at regular intervals, set the agenda of plenary sittings, and choose subjects for debates; matters selected on those days shall have precedence over government business; and

(iv) ask for debates to be held, including urgent or current affairs debates, which should be granted if a quorum of one quarter of members is reached.

The opposition shall participate in the organisation of legislative work and legislative procedure including the right to:

(i) participate in the management of parliamentary business;

(ii) request the holding of an extraordinary session, which should be granted if a quorum of one quarter of members is reached;

(iii) table bills and motions on legislative matters;

(iv) speak and vote in all debates;

(v) table amendments;

(vi) present procedural motions (change in the proposed agenda or the adopted agenda etc.).

The government has consistently in the last six months flouted these guidelines issued by PACE. To say the least, the Maltese Parliament should as soon as possible update its Standing Orders to reflect PACE recommendations.

On November 15, 2010 the European Commission for Democracy through Law within the Council of Europe (the Venice Commission) adopted a report on the role of the Opposition in a democratic parliament wherein it emphasises that:

“The opposition is usually in minority, and the minority as a general rule does not have the competence to adopt decisions… The function of the opposition is to:

(i) improve parliamentary decision-making procedures…;

(ii) scrutinise legislative and budgetary proposals;

(iii) supervise and oversee the government and the administration;

The extent to which the opposition in a given parliamentary system is allowed to actually fulfill these functions can be seen as a sign of the level of democratic maturity. If none of them are fulfilled, then this will be a sign of a dysfunctional democracy.”

It may well be stated that in the last six months Malta has suffered a dysfunctional democracy at the hands of the present administration and I leave it to the readers to decide what level of democratic maturity the PN is presently advocating.

When discussing participation in parliamentary procedures the Venice Commission suggests that “…the minority should have a say in setting the agenda… It is not conductive to effective and legitimate parliamentary democracy if the majority is able to decide the agenda alone, allowing only those debates with which they are comfortable and delaying or blocking others”.

In conclusion, I believe that in the light of the above principles the current political situation is untenable and democracy is beckoning so that something is urgently done to solve the impasse.

Dr Sammut is a practising lawyer specialising mainly in banking, financial services, commercial and civil law.