Trading places

The Panama Papers drama seems to have taken a sudden, rather unexpected turn

The Panama Papers drama seems to have taken a sudden, rather unexpected turn. ‘Unexpected’, I hasten to add, by me. It might have been perfectly predictable by others – indeed it must have been, as shall soon become apparent – but for some reason, those people kept their predictions to themselves.

Either way, I myself did not expect the motion to censure Keith Schembri to fizzle out so soon. That it would eventually be ‘won’ by Labour, I naturally took for granted… for much the same reason as its two immediate predecessors, both targeting Konrad Mizzi, were likewise doomed to fail from the outset. Parliamentary motions require parliamentary majorities to succeed; and whatever troubles may ail Muscat’s government at the moment, he hasn’t lost his majority… no, not even after the courts bumped up the Opposition’s representation by four seats.

But it was the manner of the defeat that took me by surprise. Speaker Anglu Farrugia ruled that the motion was in itself inadmissible because Schembri – as a public official appointed on a ‘person of trust’ basis – was not technically answerable to Parliament, according to the Constitution.

The Opposition’s response was to remind us all that a similar motion against Richard Cachia Caruana – another ‘person of trust’, appointed to a similar role – had not only been permitted by the Speaker of the time (former Nationalist MP Michael Frendo)... but evolved into a full-blown debate culminating in the removal of Cachia Caruana.

Here comes the interesting part. It turns out that Farrugia’s ruling is actually correct, from a strictly legal viewpoint. Whether it was ethically advisable is of course another question… but a strict reading of the law actually weighs on Farrugia’s side (and that in itself doesn’t happen very often: so take a moment to savour the rarity of the event). 

Supporting this view we have the opinion of the Dean of the Faculty of Laws, Prof. Kevin Aquilina, who commented: “It appears that a person who holds an unconstitutional appointment on a position-of-trust basis might not fall under the definition of government, understood in the wider sense, and might not be open to a motion of censure.”

Even more interestingly, it transpires that Prof. Aquilina had expressed exactly the same doubts concerning the motion against Cachia Caruana in 2012: 

“Mr Cachia Caruana was a permanent representative appointed from outside the public service and a permanent Cabinet participant,” he wrote at the time. “In so far as his formal removal from office of permanent representative of Malta to the EU goes, it should be the President, in accordance with the advice of the Prime Minister, who should remove him from office. As to attendance at Cabinet meetings, this decision is essentially in the discretion of the Prime Minister and his ministers.”

Strangely, however, the stark truth of Aquilina’s assessment had to wait until 2016 to be implemented. And what changed in the meantime? The government, of course. And also the Speaker of the House.

Now: what does this information tell us about the two opposing sides in the same debate? Let’s start with Labour: a party which, when in opposition, filed a motion it must have known to be procedurally incorrect (not to say ‘illegal’)… and yet, when in government, successfully blocked the opposition party from doing the same thing.

On the basis of that observation alone… how would you judge the Labour Party from an ethical perspective? My assessment is that the PL considers it perfectly acceptable to use methods that are unethical, unjust and quite frankly unfair… so long as it plays the game well enough to get away with it in the end. 

And I won’t even bother pointing out the incredible hypocrisy, whereby the same Labour Party now criticises the PN for trying out one of its own former tactics. No, hypocrisy is something we have come to fully expect from politicians these days. It is the inherent dishonesty that strikes a dominant chord right now… partly because the defeated motion would have otherwise given Parliament a pretext to discuss precisely the ethical behaviour of the current government.

What this also means is that, while Labour might have won the immediate political battle, it has also managed to damage itself in at least two ways. 

One, it has laid bare its modus operandi for all to see. Of course the Labour Party would promise ‘transparency’ before the election, and then doggedly refuse to publish every single contract it ever signed. Of course it would promise accountability, then shield its disgraced members from censure by any means, fair or foul.

There is no contradiction here. On the contrary, there is an unmistakable consistency in its entire approach. Whatever we said in opposition? That was just to win the election. Now, we will simply forge ahead and implement the clean opposite of what we promised three years ago. What could be more straightforward than that? 

And yes, you might well be thinking that this makes them no different from the Nationalist party: i.e., the same party which defended its own ministers when caught red-handed with undeclared overseas accounts (one which contained over three million of uncertain provenance)… then howled endlessly for the immediate resignation of Labour officials over the same offence.

All true, but all equally unhelpful. And besides, there is a difference: the Nationalists may be hypocrites, but you usually have to work out their hypocrisy for yourself. Labour, on the other hand, actually boast about their double standards. Even now, they trumpet their ‘victory’ in parliament as if inviting praise and admiration for a job well done… when this ‘job’ actually entailed defecating all over the notion of political decency.

The second drawback is that, victory or no victory, the Labour Party’s action can only really be interpreted in one way. It chickened out of the debate on Keith Schembri, because it knew it was an argument it could never really win. Oh, sure, it would have defeated the actual motion… we all know that. But in the eyes of any impartial observer, the government would have had to put up some kind of defence to justify its vote. And how does one actually defend the indefensible? 

By avoiding the argument altogether, naturally. And this is now the Labour Party’s biggest problem: it knows it faces no real political threat over the Panama issue… but it also knows it is losing the all-important battle to convince an increasingly sceptical, cynical public.

And in many respects, this is the opposite of the Labour Party we were used to until recently. In recent years – at least since 2008 – Muscat’s PL was a party that welcomed and invited discussion… because ‘public debate’ was a terrain on which it felt (and looked) infinitely more comfortable and confident than the Nationalists. It is as though the two parties switched places in more ways than just the obvious, after Muscat’s 2013 win.

But the switch works both ways. Coming back to the reasons for blocking the Schembri debate: what does this tell us about the PN?

For a change, ‘hypocrisy’ is not a charge you can realistically level at them over this one. The Nationalist approach to parliamentary discussions of non-constitutional appointments was exactly the same in both cases: the only difference is that they approached the two motions from opposite angles.

But this only raises the question of why Labour would succeed in defeating a motion on a legal technicality, where the PN so abjectly failed. Again, this marks an apparent reversal of the two parties’ perceived characters. Last I looked, it was the PN, not Labour, that was 90% composed of lawyers. ‘Legal technicalities’ and ‘loopholes’ have always been the PN-favoured method of defeating insidious parliamentary motions. And they have always been rather good at it, too.

Yet on this occasion they were outmanoeuvred on a legal technicality that was glaringly visible to them… even after an unbeatable trump card was handed to them under the table by Malta’s foremost constitutional expert. 

Paradoxically, Prof. Kevin Aquilina was not even the only person to question the legality of the motion at the time. Another was Nationalist MP Franco Debono – not exactly Mr Cachia Caruana’s biggest fan, if you’ll remember – who cited the same argument as his own reason for voting against the motion.

Clearly, then, the Nationalist government must have known that there were procedural grounds to challenge the vote in 2012, yet went ahead and took it all the same… losing their own Parliamentary majority in the process.

A number of possibilities arise. One could very simply be that they were overconfident of victory, as they have so often proved fatally overconfident in other areas. But it could just as easily be that a substantial number of government MPs were less than enthusiastic about retaining Cachia Caruana to begin with – it was (let’s face it) a time when the traditionally compact PN was visibly falling apart at the seams anyway – and the manoeuvres behind the scenes were more widespread and convoluted than any of us had previously supposed.

Either way, we are left with the disquieting impression of two parties – which together represent the pool from which all tomorrow’s governments will be spawned – which keep trading places in all the most awkward and uncomfortable ways.

On one hand, we have a Labour Party that is progressively becoming less transparent, more devious in its legal tinkering, and ultimately more… um… ‘Nationalist’ the longer it stays in power; and on the other, a PN which has progressively grown more erratic, less effective and infinitely more quarrelsome and rife with dissent (i.e, all the traditional hallmarks of Old Labour) over the years.

And the fun part? Oh, that will come in two years’ time, when the same two parties come knocking at our doors for votes... 

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