Since when does the EU care about ‘rule of law’?

Groucho Marx once famously quipped: “I don’t care to belong to any club that will have me as a member.” In light of everything that’s been going on recently, those words are uncannily applicable to Malta’s membership in the European Union today.

I stress ‘today’, because it is only today that the European Union seems to have suddenly remembered that it is supposed to actually give a toss about this thing called ‘the rule of law’. Yet the same issues that the EU now complains about within our justice system were all equally present when Malta became a member in 2004... after around four years of intense negotiations led by (on Malta’s side) the Prime Minister’s personal assistant, Richard Cachia Caruana.

Given the huge fuss the European parliament has only just made regarding the ‘rule of law’ in Malta... you’d think that all the issues debated in Brussels last week would have also been raised by the European Commission around the negotiating table 13 years ago. After all, if it’s a problem for an EU member state to have its Police Commissioner directly appointed by the Prime Minister, or for the Attorney General to have a glaring conflict of interest in his dual role of public prosecutor and government legal counsel... it should also have been a major stumbling block when it came to actually joining that club in the first place.

As indeed it should have been... on paper. Technically, the negotiations that started in 2000 were supposed to satisfy three criteria laid down at the Copenhagen Council in 1993. This is from a Today Public Policy Institute report authored by Patrick Tabone, who was a member of Malta’s core negotiating team:  

“Politically, they [candidate countries] had to show that they had stable institutions guaranteeing democracy, the rule of law, human rights and respect for minorities. They had to show that they had a functioning economy with the capacity to cope with the competitive pressure and market forces within the EU. And they had to adopt the Unions’ body of law and have the ability to take on the obligations related to membership, including eventual Economic and Monetary Union and the adoption of the Euro.”

The same issues that the EU now complains about within our justice system were all equally present when Malta became a member in 2004

In practice, however, the only areas where Malta was forced to make any infrastructural changes whatsoever concerned the second two of those three criteria: the ones which had to do with free trade, competition and common fiscal/monetary policy. 

In a word, it was all about money: the only thing the EU has ever demonstrably cared about (and cared about a very great deal to boot). As far as I can see, the ‘rule of law’ never came into Malta’s negotiations at all.

But boy, did we have to pull our socks up in all those monetary and fiscal areas. We were forced (very reluctantly) to introduce VAT and fiscal cash registers. We had to scrap protectionist mechanisms (such as the ‘sole agency’ system) and open up our economy to direct foreign competition. We had to adopt the Euro. So yes: insofar as the way we do business in Malta, things changed drastically as a result of EU membership. You could almost say we’re now a different country altogether.

Insofar as our national institutions function, however... everything remained exactly the same as it was in pre-accession days. 

For example: when Gunther Verheugen signed the Accession Treaty with Joe Borg and Eddie Fenech Adami in 2004, the institutional set-up governing the Malta Police Force remained unchanged in any detail since 1981... when Nardu Debono was beaten to death in a prison cell, and his body later dumped under a bridge in Qormi. And it would remain unchanged until 2010 – six years after membership – when the government finally introduced the most basic, rudimentary rights for persons in police custody. 

Do you think the Maltese government did this because of pressure from the EU? My foot. Rights of arrested individuals do not affect the issues that the EU really cares about: free trade, economic growth and so on. As long as those issues are not under threat, the police are free to be as incompetent or corrupt as they like.

No, it was sustained pressure from another European institution – the Council of Europe: which, by way of contrast, actually does give a toss about human rights – that made all the difference. The EU was nowhere to be seen.

But when Malta couldn’t rein in its spiralling budget deficit? Wham, bam, thank you mam! The EU came down on us like a tonne of bricks... excessive deficit procedures, threats of legal action in the European Court of Justice, the works. It almost tells you everything you need to know about the EU’s priorities, and precisely where the ‘rule of law’ places on that list.

Meanwhile, back in 2004... while we were busy celebrating Malta’s EU accession with fireworks and laser-shows... the rule of law was no different from what it had been at any point since Independence. The Commissioner of Police was still simply handpicked by the prime minister in person, just like in any tin-pot Banana republic. And like today, the AG couldn’t investigate and prosecute criminal cases involving the government... for the same reason that he still can’t all these years later: because he also doubled up as government’s own defence lawyer. 

And please note that those are just the institutional failures that we happen to be talking about right now (and even then, only for party-political reasons). When we joined the EU, the Council of Europe had also been highlighting serious human rights deficiencies in Malta’s prison system for years. 

Prison is a national institution, too. And a country’s detention policy, by definition, constitutes a massive chunk of its entire approach to human rights. But did the EU ever highlight this aspect of our institutional set-up when dictating the terms of our membership? I should think not. If it clearly doesn’t care even about law-abiding EU citizens... you can just imagine how much sleep this ‘bastion of human rights’ is going to lose over the rights of a bunch of inmates in a godforsaken prison somewhere.

Then there’s the small matter of how the judiciary is appointed. Once again, the EU negotiators clearly didn’t even see Malta’s system as problematic at a time. So what, if the Prime Minister gets to appoint judges and magistrates, on top of police commissioners and attorney generals (and also prison directors, though this one is never mentioned)? Do you think Gunther Verheugen even paused to reflect upon the fact that – if Malta joined - the prime minister of an EU member state would be in full control of every aspect of that state’s law enforcement infrastructure: from the arrest stage, through prosecution and conviction, to the appeal, all the way down to eventual incarceration? 

Of course not. Otherwise he would have said so, on the multiple occasions he addressed us all on Xarabank. No, the only thing that mattered to Gunther Verheugen – and the Commission he represented at the time - was that we dismantled our trade barriers. Everything else was our own pigeon. And he even told us that to our faces.

This is why, when it came to actually changing the system of judicial appointments to something more acceptable in the 21st century – the EU was again uninvolved and clearly uninterested. The justice reform enacted earlier this year came about as a Malta government initiative, unprompted by the Commission (still less the European Parliament). If there was any external pressure at all, it came from local lobby groups... as part of a wider call for Constitutional reform, that – yet again – is completely independent of our status as an EU member state.

Anyhow: I thought I’d point all this out, because to listen to the European parliament today... anyone would think the European Union really was the ‘bastion of human rights’ it believes itself to be. That it really does lay down strict conditions regarding the rule of law, when it comes to accepting countries as member states. That it also exists, in part, to further the interests of democracy, and all that crap.  

Sorry, folks, but... on paper, it may be all of those things. In practice, it isn’t a single one of them. In practice, it is just an overinflated, money-obsessed free trade zone, that just happens to also suffer from serious delusions of grandeur. And if it wants to be perceived any differently... well, it’s just going to have to put all its taxpayers’ money where its mouth is, and start translating all those fancy words into action. 

I am told it employs plenty of translators already, so it really shouldn’t even be that hard.