Autocratic legalism

Many would argue that one of the side effects of Labour’s 13 years in power is the uglification of Malta.

The now-abandoned Bills 143 and 144 tabled last year, which were meant to improve planning and environmental policies, represented the epitome of a long-standing pattern that takes us back to 2013.

A constitutional democracy, flawed but in reasonably good standing, is hit by a transformative election. A charismatic new leader, Joseph Muscat, comes to power, propelled by the growing impatience that the electorate feels with things as they are. The leader promises to sweep away the dysfunctions of partisanship, gridlock, and bureaucracy. He claims to call things by their right names and to speak the unspeakable. He rails against entrenched power, entrenched people, and entrenched structure. He rallies the people by assuring them that the state is theirs. He wins big over the establishment forces and starts a constitutional revolution.

As time rolled on, it became clear that, first Joseph Muscat and then Robert Abela, had the sole aim of consolidating power and remaining in office indefinitely. They both transformed themselves into legalistic autocrats by deploying the law to achieve their aims. Impending autocracy may not have been evident at the start. They often followed a script using tactics that they borrowed from each other.

In 2013, Muscat launched the controversial Individual Investment Programme (IIP) to sell Maltese citizenship to wealthy foreigners. The scheme was subject to heavy criticism, including by the EU, and last year the European Court of Justice deemed Malta’s golden passport scheme incompatible with EU principles.

And then there was Muscat’s nefarious decision in 2015 to pass the management and refurbishment of three public hospitals to a private company, Vitals Global Healthcare, in a deal conservatively estimated at €4 billion. It remains the most indelible, greatest privatisation scandal ever.

However, Labour really started to lose its lustre in 2016, when Daphne Caruana Galizia and an international investigation revealed that disgraced former Energy Minister Konrad Mizzi and Muscat’s Chief of Staff Keith Schembri opened offshore companies in Panama.

Controversial laws passed by Malta’s Labour administrations include a magisterial inquiry reform that alters the timeline for individuals to request updates on police investigations, a planning bill that drew criticism for being rushed through parliament, and changes to the Employment and Industrial Relations Act, which introduced higher fines for employers but also prompted concerns about potential loopholes or insufficient worker protection in some areas.

In 2023, to appease demands from certain quarters, this Labour administration attempted to amend our abortion law by allowing termination of pregnancy if a woman’s life was at immediate risk or if her health was in danger, which could lead to her death. The amendment faced criticism from both anti-abortion activists and pro-choice advocates. While some argued that it did not go far enough in protecting women’s rights, others expressed concerns about the potential for abuse and the sanctity of life.

A Labour government also tabled the controversial bill, which, in reality, will grant immunity to politicians and their accomplices involved in cases of corruption, despite Abela’s insistence that the reforms will see officials legally protected from personal liability for their work in office.

How does one recognise an autocratic legalist in action?

One should first suspect a democratically elected leader of autocratic legalism when he launches a concerted and sustained attack on institutions whose job it is to supervise his actions, or on rules that hold him to account, even when he does so in the name of his democratic mandate. Loosening the bonds of constitutional constraint on executive power through legal reform is the first sign of the autocratic legalist.

Muscat and Abela knew this and used a simplistic idea of democracy to rail against any constitutional constraint that stood in the way of what the electorate said they wanted. The result of such a successful ploy was simple majoritarianism, which can lead quickly to illiberalism.

How did Muscat and Abela get away with transforming liberal democratic constitutionalism into pure majoritarian legalism?

Simple. They hid what they were doing under the cover of conforming rhetoric and used liberal methods to achieve their illiberal results. The combination disarmed their critics and allowed them to entrench their rule.

The situation has become even more hideous due to direct corruption, including the clientelism or political patronage that underpins Malta’s current political system. The lack of accountability and lack of investigations make it harder to have a proper reckoning.

What has certainly changed in the past few years is a culture of greater permissibility, and that has contributed to greater impunity and made the whole system grotesque.

A nation that destroys its democratic principles and the rule of law destroys itself.