Cicero once affirmed: “Legum omnes servi sumus ut liberi esse possimus” (we are all the servants of the law so that we may be able to be free). Freedom is possible when the law is respected and it is endangered when the law is frequently breached. Yet, with the institutionalisation of partitocracy since independence, the two-party system is contributing to loss of freedom not to its flourishing.
This is because, as George Orwell wrote, “all animals are equal but some animals are more equal than others”. Laws are made for the common good as, in the words of St Thomas Aquinas, “law is an ordinance of reason made for the common good by him who has charge of the community, and promulgated”.
But the political parties in parliament enjoy an upper edge over the common good. Laws are enacted not to serve the private or partisan interests of a political party but for the common good.
Partitocracy is when political parties take complete control of the government, constitutional commissions and Broadcasting Authority, state institutions and bodies corporate. Legislating for the mutual interest of the two political parties represented in parliament, but even to the detriment to the common good, does not fall within Aquinas’s definition of law.
The Constitution is founded on the rule of law but this, in practice, has been misapplied to mean rule by the political parties in the House to suit their interests and for their benefit even if that may be to the detriment of the national interest, the common good. Since there is no clear and distinct separation between political party and state institutions, the rule of law has been modified into rule by political party.
Law, more often than not, is enacted to suit the political parties represented in Parliament and extant laws are interpreted and/or applied primarily to serve their purposes, before those of us common mortals. If such occasions were to be few and far between, then one might perhaps reluctantly condone such oversight or mistake. But the problem is that legislating in the interests of the partitocracy has developed to such extent that it is rotten to the core.
Take as an example the fundamental law – the Constitution – to establish how this duopoly has contributed to the misrule of law. See how the membership of the Employment Commission, the Electoral Commission and the Broadcasting Authority is partitioned between both political parties such that it does not reflect the public interest willed by the Constitution but, instead, encompasses the partisan interest of the two parties in Parliament.
Since there is no clear and distinct separation between political party and state institutions, the rule of law has been modified into rule by political party
Half the members appointed on these (supposedly designed to be independent) constitutional institutions are loyal to the political party in government; the remaining half are loyal to the party in opposition. But what about loyalty to the Constitution and to the common good? Members on these commissions and authority are conveniently dispensed from subscribing to an oath of loyalty to the Constitution. The Constitution is relegated to second division.
The chair of these commissions and authority is decided by the Prime Minister after consultation with the leader of the Opposition but when the former dislikes the latter’s views, he passes on to appoint whoever he decides without obtaining the consensus of the latter.
Take the case of the Financing of Political Parties Act which, from day one, was already condemned to failure, not only because of its ill-drafting when it empowers the partisan-appointed Electoral Commission to inflict administrative penalties in lieu of criminal offences adjudicated by an impartial and independent court established by law, but also because political parties represented in Parliament honour it in its breach either by operating outside this law or accepting sponsorships in breach thereof.
The 2016 constitutional amendments adopted by both parties in Parliament in relation to the appointment and discipline of the judiciary fall foul of case law decided by the European Court of Human Rights. But this does not seem to make our political parties blush with unrepentant embarrassment that they are trampling upon fundamental human rights.
The licensing of the public broadcasting service by the government instead of by the broadcasting regulator is of no worry to our political parties because both use (or better abuse) it when in government and prefer to maintain the status quo knowing then, when in government, they will have a free hand to use the national broadcaster for partisan propaganda.
Party-owned political radio and television stations, whose mission statement is not surely the unwavering search for truth but fostering division in Maltese society, producing Goebbels-type propagandists out of journalists, and mudslinging, are eulogised, with government even forking money by way of advertisements to make good for their financial sustenance.
Although position of trusts are unconstitutional, both political parties in government prefer to close one eye (if not both) to this blatant abuse and employ red-eyed or blue-eyed boys and girls when in power. When in opposition both political parties delight themselves criticising the government of the day of its frequent recourse to direct orders for the benefit of political party loyalists, but when in government – unashamedly – they are the first to follow the miserable footsteps of their predecessor in government.
Both relish breaching financial regulations to the utter dismay of the Auditor General who pens, year in year out, various reports which are ignored in part by the public administration, where no minister accepts political responsibility for maladministration and resigns, or where no public officer is disciplined for squandering government money.
What John the Baptist was to Herod, the Auditor General is to the Maltese government and to the public service – a voice in the wilderness.
When appointing persons to public offices and statutory bodies, both political parties practice the principle that charity begins at home. Meritocracy – a word banished from the Maltese archipelago – is only used as lip service with the rule of the day being instead nepotism, clientelism and cronyism. Toothless institutions of the State are created just to confirm that they exist in Malta but are not allowed to function properly because they are not given adequate resources – take, for instance, the Commission Against Corruption.
This is only the tip of the iceberg. The list of infamies can go on and on. Yet will these points be addressed by the political parties in their electoral programmes and implemented in the next legislature?
My gut feeling is that the stakes are too high and that it is convenient for both political parties to maintain the status quo. I thought that by joining the EU we would have matured as a country and these would have been things of the past. Alas I must confess I got it wrong!
Edmund Burke once wrote: “There is but one law for all, namely, that law which governs all law, the law of our Creator, the law of humanity, justice, equity – the law of nature, and of nations.” But Burke was not writing for Malta where there is one law for the political parties represented in the House and another for the rest of society.
Kevin Aquilina is the Dean of the Faculty of Laws at the University of Malta.