It has long been evident that the rule of law in Malta is weakening progressively. Recent events brought this dramatically to everyone’s attention. Whereas ‘the rule of law’ was once an esoteric phrase used by lawyers and a handful of politicians, it is now on the lips of ordinary people, an object of everyday conversation. Perhaps a tipping point has been reached, in that numerous people now believe that a weak rule of law threatens their safety and well-being, even if it is not altogether clear to them what the term means.
Scholars and policymakers everywhere hold the rule of law to be the most fundamental principle of good governance, better than good policy. However, the range of meanings given to the term is so wide that some scholars hold it to be meaningless.
Tom Bingham, a distinguished British jurist and one of the world’s finest legal minds, quotes an American scholar to the effect that “utterance of those magic words [means] little more than ‘Hooray for our side’”. He goes on to say that the core of the principle is “that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts”. (Bingham, T. 2010. The Rule of Law. London: Allen Lane, p.8).
Building on this, the World Justice Project identifies four universal principles of the rule of law, namely, accountability, just laws, open government and accessible and impartial dispute resolution.
The comments, declarations and protests aired publicly in Malta during the past weeks echo these principles. They call insistently for the resignation and replacement of the Commissioner of Police and the Attorney General: these two high offices of State constitute, as it were, the first line of defence of the rule of law, with an independent judiciary as a second bulwark.
Much is also being made of the failure of the State’s institutions to protect freedom of expression and to act decisively against corruption.
There are calls for national unity, for a bi-partisan approach to constitutional reform.
While there is much validity in these comments, they fail to address the heart of the problem: they do not explain why at least some of Malta’s governing institutions are failing, or why the rule of law is weak, or they impute guilt to the government in office, or to errant public officers.
We suggest that the origin of our present predicament lies in the defining characteristic of Maltese politics, which is its tribalism.
The partisanship of Maltese politics is widely known, almost universally deplored, yet an object of endless fascination to citizens and scholars. Partisanship is evident in the ruthless competition for votes, in the use of scandal to besmirch political reputations, in the manipulation of news and public opinion, and in the intense, enduring loyalty of Maltese voters to the two major political parties.
For their part, the Labour and Nationalist parties have progressively modified the electoral system to secure a de facto duopoly in the House of Representatives; they run elaborate, well-funded media houses; manage business portfolios; maintain tightly organised party headquarters and strict control over the nomination of electoral candidates.
What, you might ask, is objectionable about this? After all, political parties are defined by their essential aim, which is to compete for political office. Why, then, call Maltese party politics ‘tribal’?
Francis Fukuyama, one of the present century’s great thinkers about the state, holds that tribes are the most natural political communities and points out that tribal politics is the default mode across large parts of the world.
Tribes are composed of kinship groups; their fundamental purpose is to provide collective security for their members. Thus, tribes are concerned with material benefit, rather than abstract ideas, such as ‘rights’. They form around powerful leaders rather than ideologies or programmes.
Tribes place a higher value on the loyalty of their members than they do on citizenship; their members identify with a leader rather than an institution. They constitute networks through which assets, material goods and inter-personal services are distributed.
Although this activity enjoys legitimacy among the members, the spoils are not distributed equally: they are allocated hierarchically, in proportions determined by a member’s proximity to power and ability to reciprocate the assistance received from a patron.
Consequently, tribal politics becomes a zero-sum game in which the winner takes all; the gains made, lawfully or unlawfully, by one party are perceived by the other as loss.
The rule of law requires credible institutions, but it cannot subsist without a profound conversion in Maltese attitudes towards politics, power, law, justice and public service
Tribal loyalty deforms democratic political competition and debilitates governing institutions. The principal objective of political competition becomes that of capturing the State’s institutions, agencies and assets, and plundering them for the benefit of the tribe’s members.
The ability of government officials to take decisions on the merits of a case and in accordance with the law is weakened; decision-making comes under the inordinate influence of tribal loyalties. Moreover, the perception of politics as a ‘zero-sum game’ places a premium on excluding competitors from public office. The distinction between ‘government’ and ‘opposition’ comes to be rooted in suspicion and hostility.
In short, party politics and tribal politics are based on fundamentally different attitudes towards power, authority, law, justice and the common good. Party politics does not necessarily undermine the rule of law; in contrast, tribal politics, of its very nature, is antagonistic to the rule of law.
Maltese politics displays far too many characteristics of tribal politics. This is seen in the ever-growing tendency to place party loyalists in the great offices of State; in the alignment of recruitment into public organisations with electoral cycles; in the mounting claims of corruption in matters such as public procurement, the disposal of State land and development applications. Tribalism is evident in the disquieting inclusion of unsavoury characters in some ministerial retinues, past as well as present.
Tragically, Malta’s electoral system pits every candidate in an electoral district against every other candidate, including those from the same political stable, thereby accentuating the tendency towards clientelism.
The Maltese State has a large patronage at its disposal: contracts, permits, land and public infrastructure worth hundreds of millions to successful bidders. Decision-making procedures and criteria are opaque.
Ministers exercise virtually unfettered discretion over appointments to public organisations which, in turn, place office-holders in positions of authority that give them leverage over actual or potential competitors.
This is not to deny the real contribution that Maltese politics makes to sound public policy. Fortunately, far from the public gaze, bi-partisan cooperation is frequently encountered in the laws enacted by the House of Representatives, while numerous government services operate in a genuine spirit of public service. Were that not the case, the Maltese State would have long ago collapsed in disorder.
Nonetheless, there is mounting evidence that the tribal character of Maltese politics is increasingly subverting our democracy as well as our institutions, and threatening the gains made to the well-being of our islands’ inhabitants by decades of sound policymaking.
The rule of law can be re-established. A joint effort by the government and Opposition, on the lines of the initiatives that led to the creation of the Ombudsman and the National Audit Office in the mid-1990s, can restore credibility to the first line of defence.
An alliance of the independent news media and civil society associations, working independently of the two major political parties, can enlarge the space for political dialogue about the kind of State and society that Malta could become.
By detaching itself from tribalism, such an alliance could improve the scrutiny and accountability of political and business leaders. Where possible and appropriate, civil society can also undertake political action to influence the outcome of policymaking.
The rule of law requires credible institutions, of course, but it cannot subsist without a profound conversion in Maltese attitudes towards politics, power, law, justice and public service; in short, a renewed commitment to citizenship.
Edward Warrington is associate professor, Department of Public Policy, University of Malta.