Malta's midlife crisis

Middle age is a funny thing really. It sort of creeps up on you unawares. One second you’re deep in the habit of prefacing all your thoughts with: “later, when I’m older”. Then suddenly you realise: hang on… I’m older now. What happened to all that stuff I’d said I’d do?

It’s a little like that classic Dan Quayle quote: “The future will be better tomorrow.” Or that classic bar sign about drinks being ‘on the house’… the following day.

Hence the funny part. We all know that if there’s ever going to be a time when things actually do get better, it can only be when we force ourselves to stop thinking in the future tense, and start living in the present. But while it sounds simple, it turns out to be horribly complicated in practice.

Those among you who have crossed that invisible (and hopelessly arbitrary) threshold of middle age will know what I mean. Just cast your minds back 20 years, and try recalling how you once imagined your life would be like “when you were older”. Then compare that vision to your life as it really is right now, and see where it takes you.

Interestingly enough, this week we got a rare glimpse of how the same midlife crisis affects entire countries instead of just individuals. Malta turned 50 last Sunday (at least, as an independent state)… though none of the main protagonists of independence are alive to make the same comparison today. Who knows what they would have seen, had they cast their minds back 50 years and tried to recall how they imagined Malta half a century later? What would George Borg Olivier have seen, I wonder?

Impossible to say, but he did leave behind a few clues. This is what he told the Chatham House Independence Conference of 1963: “The Constitution which we envisage incorporates the principle of responsible parliamentary government based on a tested democratic system. It safeguards the interests of the nation and the fundamental rights and freedoms of the individuals composing the nation. It secures the independence of such organs and authorities as must be outside political influence. It reaffirms the political sovereignty of the electorate by ensuring the holding of free elections at fixed intervals...”

And there you have it: how baby Malta imagined itself as an adult… at a time when it was still a tiny toddler trying to climb out of its cot. And already we can see that it is not unlike many of us in this regard. It had lofty ambitions. It saw big. In fact, judging by the type of Constitution that was originally envisaged for independent Malta, you’d never guess that the same document has had to be amended 26 times since then… and evidently still needs amending today.

In fact a think- tank called the Today Public Policy Institute has just published a “Review of the Constitution at 50”… and calls for yet another long overdue reform of this document, of the sort that has been variously promised by governments (then promptly forgotten) for years.

It is as though suddenly, without warning, baby Malta has found itself half a century old… without having accomplished half the things it had earlier promised itself it would ‘one day do’.

For the purposes of this, my own review of the Constitution at 50, I will stick broadly to the same themes that concern the TPPI: electoral reform, the judiciary, neutrality, etc. In all such areas, I found that the single underlying problem – the rut, so to speak, in which the wheels of Constitutional reform got stuck – has always been the same.

The Constitution envisaged by Borg Olivier in 1963 was supposed to guarantee “the independence of such organs and authorities as must be outside political influence”. In practice, however, it omitted itself from that consideration. It provides protection for the judiciary (though not, as shall be seen, very successfully), and for other autonomous arms of the state; but it contains no mechanism to protect itself from the clutches of Malta’s bipartisan system. As a result, it has time and again been hijacked by political interests.

Unsurprisingly, therefore, in all areas where the Constitution has been amended since 1964, the amendments were the fruit of negotiations that were satisfactory only to the two parties occupying Parliament at the time. Equally unsurprisingly, in all areas where no such satisfactory agreement could be reached, the Constitution was never amended at all.

The most obvious example is electoral reform. The TPPI review places much emphasis on the 1987 agreement between the PN and MLP, in order to avoid a repeat of the 1981 election result. Quite aptly, it describes this amendment as “a grand political bargain between the two political parties.”

What it doesn’t do – tactfully, no doubt – is point out that the result of this cosy arrangement has made a mockery of democratic principles.

The 1987 amendment sought to ensure proportionality between a party’s share of the nationwide vote, and the number of seats it is given in parliament… in part because our incredibly complicated electoral system can still throw up situations where a party may win a 50%+1 majority across the entire country, but find itself in opposition anyway.

Immediately, two glaring flaws swim into view. The first is that our 1964 Constitution had failed utterly to foresee this eventuality. It just assumed that the party with the most seats would automatically also have the most votes, as is meant to be. From the outset, then, it was a document rooted in the political realities of its own day, incapable of even conceiving that those realities might one day change.

This same flawed worldview has left its paw-prints all over our Constitution. For instance, it defines us as a Catholic country because that is how Malta saw itself in 1964… and also – more worryingly – because the age that produced it was characterised by fierce clashes between the Church and the Labour Party.

Article 2 proclaims the ‘Roman Apostolic Catholic Religion’ as the ‘religion of Malta’, and accords it the ‘right and duty to teach right from wrong’. Under the microscope, however, this turns out to be an uneasy compromise forged by the overweening influence of Archbishop Michael Gonzi over Borg Olivier… and the overriding fear of Mintoff and his celebrated ‘six points’.

At no point was any consideration given to how uncomfortably this same article would sit, against the backdrop of a Malta which defied its supposedly official Catholic religion by voting yes to divorce in 2011.

But back to the 1987 amendment. The second flaw is that the change that was supposed to rectify this error, somehow managed to make the same mistake again. The brokers of that amendment only looked at the realities of their own day – i.e., two monolithic parties occupying both sides of the House, indefinitely – and failed to predict a situation when three or more parties might get elected to parliament.

The net result is that the electorate has been blackmailed in every election since 1992. You’ve all heard the drill before: if a third party gets elected, the Constitutional mechanism won’t kick in, and we could be left with 1981 happening all over again.

In a nutshell, then, the grand achievement of this grand bargain was to simply defer the problem to a permanent future. So long as it doesn’t happen in this election (1987)… and so long as the resulting tinkering works out to both parties’ advantage in the long term… well, the rest can go to hell.

Exactly how anyone can reconcile this with Borg Olivier’s earlier dream of a Constitution which ‘safeguards the rights and freedoms of the individuals composing the nation’ is anyone’s guess.

Meanwhile, the amendment itself does not even resolve the issue. It simply whitewashes over it. Even with the 1987 amendment in place, the same ‘perverse’ result can still materialise. Only this time, the Constitution can create special, magic seats – the exact number needed to have a one-seat majority, every single time! – and simply hand them over to the party that needs them.

But we still have a system which is spectacularly prone to gerrymandering, and in which a shocking number of votes gets wasted in each election. The amendment doesn’t mend that at all.

You can almost pick out any problem area at random and find the same underlying pattern. As we all saw in the recent case of Mr Justice Farrugia Sacco – and before him Tonio Depasquale – the existing Constitutional mechanism for the removal of judges just doesn’t work. Without even going into the merits of whether the above-mentioned judges should have been removed or not, we can already see how a giant spanner has been jammed into the works: a judge can only be removed by a two-thirds majority in parliament; and that can only happen when the two parties agree… which in this scenario means never.

In this particular case, however, the intrinsic irony becomes spectacular. The whole point of the ‘two-thirds majority’ business was to protect the independence of the judiciary. Yet in practice, individual judges are still appointed directly by the justice minister, and can still be spared impeachment by a decision taken by a political party. Their rise or fall is therefore dictated by purely political forces. How on earth, then, can anyone in his right mind describe Malta’s judiciary as ‘outside political influence’?

Elsewhere, politicians proved unable to anticipate a future in any way different from their own present… so they bequeathed to us a neutrality clause which still refers (indirectly) to the Soviet Union. Yes, that’s right, the same USSR which officially ceased to exist two years after that clause was inserted into the Constitution…

All it would take to correct this particular mistake is a minor re-wording of half a phrase… yet for this we need negotiation and horse-trading between the same two parties that have consistently placed their own self-interest above that of the entire country for 50 whole years.

So when the cookie crumbles, it is all well and good to sit back and talk about Constitutional reform like it’s one of the things you’d like to do “when you’re older”. But if experience is anything to go by, it either won’t happen at all… or, worse still, it will happen in such a way as to crystallise our own, short-sighted political realities into a document that future generations will find hard to change... and even then, only to ensure that the interests of the same two parties responsible for all this mess continue to be paramount forever.

Much simpler, then, to do what individuals do when experiencing a midlife crisis. Never mind reforming the Constitution, and creating a fairer society for all, or anything like that. Buy a sports car, start up a rock and roll band, and to hell with everything…