When we read about flouting of hunting regulations and the shooting of protected species; when we connive at VAT irregularities; when we witness numerous traffic and parking irregularities, what does this tell us about our national attitude to the rule of law? When we examine how justice in our courts is administered or how the police handle the kind of incident which I have just recounted, what does this say about our respect for the rule of law? On the whole, I think most of us would agree that the law in Malta sits too lightly on our shoulders.
These thoughts were brought back to me recently as I examined the epidemic of corruption eating like a canker in Maltese society, and what to do about it.
I was clear in my own mind that adherence to the rule of law is the bedrock of the fight against corruption.
But I failed to examine fully the implications for the rule of law of the government’s arbitrary decision that individual consumers who benefitted from the smart meters racket by bribing Enemalta officials to tamper with the meters were to be given an amnesty for their crimes.
This would be allowed, the government stated, on the proviso they “regularised their position” within six weeks by paying back the money they owed Enemalta in addition to paying a penalty of 10 per cent of the defrauded amount.
The government’s decision – which appeared to have been taken over the head of the Commissioner of Police – was defended on the two-fold grounds that it wanted “to catch the spider that spun the web” rather than “the small fish”, and that a law (or regulation) existed that gave Enemalta the option of allowing for such an arrangement.
It is for the Commissioner of Police to say whether, when it comes to upholding the law and arraigning those responsible, he condoned this action, and to examine whether his position of independence of the executive has been undermined by it.
Did the government’s arbitrary action uphold or diminish the rule of law? Should justice have been allowed to take its course without political interference?
It seems to me that if we believe in a rule-based democracy, the answer to the first question must be that the government’s action undermined the rule of law. And to the second, a resounding yes.
But the case exposes more generally what it says about our respect as a nation for the rule of law. We cannot have a set of rules and then break them whenever convenient. The importance of due process extends well beyond the sphere of human rights, or some misplaced sentiment not to punish the small fish.
It is central to economic and personal liberty and much else as well. By implementing the amnesty for smart meter cheats, as the Prime Minister apparently decreed, it represents a dangerous exercise in arbitrary power.
We like to think of ourselves as a country built on law. Indeed, we present ourselves to the world as a country where the law is robust and neutral, a law that fears no one and favours no one because, among many other things, our reputation as a financial services centre depends on it. We understand in our heart of hearts that if Malta is not a country of law, its financial services are insecure and undermined.
Respect for the rules, especially when they throw up unpopular decisions, is a cornerstone of civilisation. It enables people to plan, to invest, to negotiate and to live without fear of arbitrary interference. I am not suggesting that a single lapse will take us on a slippery slope towards North Korean or Russian norms of conduct, where judges have been coerced into verdicts predetermined by Putin or Kim Jong-Un.
But I am arguing that all lapses weaken the institution of the rule of law that is so vital to our future, our freedom and to our quality of life.
We cannot have a set of rules and then break them whenever convenient
Respect for due process needs centuries to take root. We tamper with it at our peril. At bottom, law is all we have in a civilised society. Without it, there is chaos. The only way forward is to ensure that signs of arbitrary justice or the unilateral interpretation of constitutional norms (as the extended responsibilities of President-elect Marie-Louise Coleiro may give rise to; the jury is still out on this) are firmly brought back under the rule of courts and the law. Without fear and without favour.
The rule of law is fundamental to a civilised society. Respect for it, and the fair, speedy and efficient administration of justice, are central to any successful democracy. It should guide our conduct. It protects our individual rights.
It provides that no person is deemed to be above the law and no one can be punished by the State except for a breach of the law. Overridingly, nobody can be convicted of breaching the law (or be given an amnesty) except in the manner set forth by the law itself.
The efficient and effective administration of justice is essential to any successful democracy. Malta has a long tradition of jurisprudence and judicial oversight.
It has some excellent lawyers. On the whole, we have been moderately well served by systems and individuals, including commissioners of police, who have been independent-minded and independent of the State. Despite some appalling individual lapses, the judiciary, through its independence, has sought to be a bastion of liberty and justice.
Nevertheless, it has been apparent for some while that there are areas of our justice system which are crying out for improvement. A number of years ago, the former Chief Justice, speaking towards the end of his tenure, felt free to propose that an independent body should be set up to look into the judicial system, to see what difficulties exist and to propose remedies. He pointed out that although many reports had been instigated and many gaps in our system of justice had been highlighted, action to make real and long-lasting improvements had been slow in coming.
The administration of justice had long been one of the Cinderellas of Nationalist government business. The arrival of the Labour administration a year ago, an energetic Parliamentary Secretary for Justice and the establishment of an outstanding Justice Reform Commission under Judge Vanni Bonello have finally made a start on the reform of the administration of justice.
It still has a long way to go before its full implementation and there have been too many false dawns – too many previous examples of good intentions foundering on the rocks of vested interests.
Until the reforms proposed by the Reform Commission are implemented, our judicial system and our respect for the rule of law will continue to creak.
If we are to progress as a democracy – a rule-based democracy – we need to ensure that the machinery of law, order and the administration of justice is in good working order.
We should determine that perennial criticisms of the law do not go unheeded and that the arbitrary interference or tampering by government into matters which are outside its constitutional remit do not happen again.