‘Referring to their pressure groups as pseudo-political groupings shows poor understanding of how democratic politics works where civil society is not dead or moribund.’ Photo: Matthew Mirabelli

The rule of law is one of those fundamental political concepts that are bounced about but left largely unexplained political convenience. Martin Scicluna quotes Tom Paine’s dictum that it is politically supreme, which is true to the extent that without it there is anarchy or tyranny, the absence of law or abusive impunity. The first renders civilised living impossible, the second makes for systematic plunder.

The sovereignty of the law ensures the integrity of society, corruption undermines it. Yet the rule of law is only an instrument, a tool of government that sustains stable governments and political systems of different sorts, totalitarian and democratic.

The consensus in this country is that it serves our modern representative democracy, a political system which, in its broadest terms, recognises the ‘people’ as politically sovereign.

    All this bears on the issue of political governance the subject of articles Scicluna has written in the Times of Malta, the most recent at this moment of writing being May 16. I agree with him that the question of governance and the rule of law is Malta should be framed within the assumption that ours is a liberal democracy. Not because this is how our Constitution defines the political nature of the Maltese State but because there exists consensus on the liberal freedoms without which democracy is simply the dictatorship of the majority.

Defending freedom of expression and association (including that to form popular movements and pressure groups) is therefore defending our democracy.

This makes it difficult to explain Scicluna’s systematically vitriolic attacks on people who, in the aftermath of the Daphne Caruana Galizia murder, exercise these democratic rights to associate as pressure groups, voice their concerns and discontent and press for transparent and responsible governance through peaceful demonstration without being accused of “hypocrisy and cant,” insulted by being called “pseudo-political grouping calling for what they define as ‘truth and justice’”.

 A mixture of arrogant intolerance intended to demean and discredit, perhaps bully the protestors out of existence, which is certainly not liberal. Especially when he attacks their motives, their social class, political associations, numbers, education, and so on; anything but their song.

Referring to their pressure groups as ‘pseudo-political groupings’ shows poor understanding of how democratic politics works where civil society is not dead or moribund. 

Martin Scicluna persists in confusing democratic accountability with magisterial inquiries

Indeed, pressure groups are as fundamental to keeping those in power accountable in a democracy as are a free press and media. The song about accountability these particular pressure groups sing goes to the very heart of a democratic politics based on the fiduciary relationship of government with the State; its role as purely custodial.

In simple terms, in a democracy the government doesn’t own the State, the people do, nor does it own the public purse. It administers the State and the economy in the common interest, the interest of the people, not in that of the party in power or its members.

The people or citizenry, on the other hand have the political right, nay the obligation, to scrutinise the government, to call it to account, as these “pseudo-political groupings” are doing, agree with them or not. This calling to account is the principle of democratic accountability; secretive and opaque governance is the stuff of dictatorships.

Scicluna seems not to understand this because he persists in confusing democratic accountability with magisterial inquiries that, important as they are, are about criminal liability not democratic accountability.

Democratic accountability resides in the public domain not in the law courts.  It demands of political trustees the transparent and ethical governance of the res publica, criteria that have nothing to do with criminal guilt.

Hence the principle he keeps citing that government members who are subject to a magisterial inquiry must be presumed innocent until found guilty, though true of criminal charges, is irrelevant in democratic politics where the standards of behaviour demanded of those enjoying fiduciary powers or the people’s trust are considerably higher than not being found guilty of a crime – those of full accountability.

Especially where the power of incumbency, the government’s influence on the police and security, and on the public administration, and therefore the danger of impunity, is as strong as it is in this country. These standards of accountability require those enjoying fiduciary power to surrender it when their or their subordinates’ actions are called to serious account. This means resignation or dismissal where there is no credible explanation or justification for the action or behaviour brought into scrutiny i.e., when the scandal or suspicion refuses to go away, if the circumstantial evidence warrants it.

This is because, contrary to guilt, accountability, by its very definition, places the onus of proof on those accountable not on those to whom accountability is owed. Democracies that are not jealous of this principle are destined to a short life!

If I entrust you with my business or property, the onus of justification or proof should any suspicion of neglect or mismanagement of it arise, is yours not mine whose property it is. Of course no crime is committed by hanging on to office at any cost, but this scarcely happens in mature democracies because of the public indignation and the high political cost it brings with it; the albatross it becomes around the country’s neck.

In mature democracies the resignation or dismissal of those enjoying public trust is demanded when their credibility, honesty, or competence, is seriously exposed. We are remote from this kind of political culture in Malta but we have to aspire and work for it, even if we are in a minority.

Nor does the endorsement of a government by the majority however large dent the case for holding it democratically accountable or minimise the people’s vigilance. The contrary is true, and democratically mature governments recognise that their accountability grows with their power not diminishes; this principle lies within the logic of accountability itself.

They therefore create the internal and external mechanisms required for transparent self-regulation, while a free and active civil society and media will ensure that this happens.         

These mechanisms usually take the form codes of ethics and governance administered by boards and committees made up of people of trusted integrity from all sides of the political spectrum, able to hold their inquiries freely and to sanction offenders who fall short of the standards laid down in the codes.

In mature liberal democracies these bodies hold actors in positions of public trust accountable for their actions. Understanding this, Scicluna will understand the role of the Euro-parliamentary commission, not a court of law but one to examine the democratic credentials of this country.

Kenneth Wain is a philosopher and lecturer at the University of Malta.