The rule of law squabble

Criticism and laments about the reliability of the rule of law in Malta often crops up in the media and in politician’s speeches.

I find that many miss the point of what the tenet of ‘the rule of law’ is about. Speaking in layman’s language and without entering into legal treatises, the ‘rule of law’ implies that nobody is above the law – not even Cabinet Ministers or high officials in the administration. It also implies that everyone is equal in front of the law, which means that discrimination for whatever reason is not acceptable.

Some go on to erroneously conclude that if a minister breaks the law, there is a breach of the rule of law. In fact the breach exists if the minister does so with impunity and the system that cannot or refuses to check the minister for his transgression.

Last Monday a French court sentenced former President Nicolas Sarkozy to three years in prison for corruption and influence peddling, but suspended two years of the sentence. In fact he became the first former French president to have been sentenced to jail in France’s modern history. 66-year-old Sarkozy was found guilty of trying to illegally obtain information from a senior magistrate in 2014 (when he was no longer President) about an ongoing investigation into his campaign finances.

The judge said Sarkozy did not need to serve time in jail and he could serve the sentence by wearing an electronic bracelet at home.

Sarkozy broke the law eight years ago and now he was found guilty of doing so – a good example of the rule of law in practice because the law considers a former President and an ordinary citizen equal when they are accused of a crime. There was no breach of the rule of law when he committed the crime and he could have done so thinking that the system will close an eye because of his status in France, but the rule of law prevailed.

This week, a Romanian court sentenced a former government minister as well as the daughter of former president Traian Basescu to jail on Tuesday for money laundering and instigating others to take bribes in a 2009 presidential campaign financing case.

The court in Bucharest gave Ioana a five-year prison sentence. Elena Udrea, a former centre-right minister, lawmaker and close political ally of former president Basescu was handed an eight-year prison term.

The verdicts are not final and are subject to appeal. Basescu and Udrea denied any wrongdoing.

Investigations by anti-corruption prosecutors in Romania have exposed conflict of interest, abuse of power, fraud and awarding of state contracts in exchange for bribes across political parties.

It seems that even in Romania justice is, at last, prevailing.

In Malta, people seem to imply that the rule of law depends on the actions of politicians in power. If they break the law, they argue, there is no rule of law. This is nonsense because, as humans, all politicians are susceptible to breaking the law. They might break the law on the assumption that they enjoy some imaginary impunity, but if this does not result, then the rule should prevail.

Last Sunday’s editorial in The Malta Independent on Sunday argued that a number of abuses carried out by people in power prove that there is no rule of law in Malta. nOne argument went this way, and I quote: “If the rule of law really worked, we would not have had a Deputy Police Commissioner resign over his close friendship with the alleged mastermind – a relationship which was kept secret until it was exposed by the media.”

This is shifting the argument, making ‘the rule of law’ depend on the short-sightedness and stupidity of the disgraced Deputy Police Commissioner. The rule of law comes into it only if there is an indication that the Deputy Police Commissioner can be found guilty of breaking the law in a Court of Law and this is ignored by his superiors. The man in question had to resign – that is how democracy works; but resignations do not necessarily indicate a crime punishable at law.

In other words, breaking a written or some tacit ethics code that could be a very serious political mistake is not necessarily tantamount to a crime.

The editorial went on mentioning a number of mistakes and abuses made by the former and current Prime Ministers, as if ‘the rule of law’ means that Prime Ministers do not make mistakes, serious as they may be. The argument concluded that we have a system where politicians can get away with anything – where a resignation is deemed sufficient to erase all their sins.

I agree that there are instances where criminal investigations that could lead to an accusation in court should have been pursued, but implying that all reasons for resignations are necessarily crimes punishable at law is utter nonsense.

The editorial ends up by declaring that if the rule of law really worked, ‘dealings between big business and politicians would be unheard of’.

It is obvious that this imaginary situation dubbed as ‘rule of law’ by this editorial does not exist anywhere in the world.

There are breaches of the rule of law in all countries that declare its observance. Some are worse than others. Malta is no exception. But depicting Malta as some pariah on this issue is not on.

The Brexit effect

A report in the Belfast Telegraph says that Northern Irish loyalist paramilitary organisations have told Boris Johnson they are temporarily withdrawing their backing of the Belfast/Good Friday accord amid mounting concerns about the contentious post-Brexit Northern Ireland Protocol. They stressed that unionist opposition to the protocol should remain “peaceful and democratic”.

The 1998 agreement that loyalist paramilitaries endorsed 23 years ago ended decades of violence and established devolved power-sharing at Stormont.

The paramilitary organisations claimed that Britain, Ireland and the EU had breached their commitments to the 1998 peace deal and the two communities.

It is worth recalling that while campaigning in the presidential election last year, US President Joe Biden, had bluntly warned the UK that it must honour Northern Ireland’s 1998 peace agreement as it withdrew from the EU or there would be no separate U.S. trade deal.

Meanwhile, the EU has this week promised legal action after the British government unilaterally extended a grace period for checks on food imports to Northern Ireland, a move Brussels said violated the terms of the Brexit accord.