The Rule of Law and a new con­sti­tu­tion

There are prob­a­bly two ways of defin­ing a na­tion. Ei­ther as a group of peo­ple shar­ing the same lan­guage. Or else, a na­tion as a group of peo­ple shar­ing the same his­tory. Both im­ply that the group is happy with the shar­ing.

Malta Independent - - COMMENT - Mark A. Sam­mut

Then there can be con­cen­tric cir­cles. One could be­long to a lin­guis­tic group with a shared his­tory which it­self be­longs to a larger lin­guis­tic group with its shared his­tory. Take Si­cily and its re­la­tion­ship with Italy, as an ex­am­ple. The Si­cil­ians have their own his­tory and lan­guage, but they also share (at least a part of their) his­tory with the other Ital­ians.

In the case of Malta, lo­cal iden­tity and na­tional iden­tity are one. And both his­tory and lan­guage are shared by the en­tire pop­u­la­tion (whether hap­pily or not, that’s an­other ques­tion). So there is no need to de­fine the “na­tion”.

Which makes it easier, in the­ory at least, to con­ceive the idea of a na­tional con­sti­tu­tion for the na­tional State.

The prob­lem, need­less to say, is how to work out the rules which are to gov­ern and run the State.

It is clear that this has be­come an ur­gent na­tional pri­or­ity, also be­cause of the break­down of the rule of law. Whether the break­down is real or per­ceived makes lit­tle dif­fer­ence. A per­cep­tion can be­come a self-ful­fill­ing prophecy, so it fol­lows that ur­gent ac­tion is needed in ei­ther case.

To my mind, all of this raises three ques­tions.

1. The Rule of Law

Whereas I ad­mire those who are in­sist­ing on the ne­ces­sity of a restora­tion of the rule of law, I am not sure that the ba­sic premise of the ar­gu­ment is clear to all.

It has to be clear to all be­cause Malta is a democ­racy based on uni­ver­sal suf­frage. It would be an un­nec­es­sary lux­ury to alien­ate any part of the elec­torate at this mo­ment. The project has to in­clude an ex­pla­na­tion – ac­ces­si­ble to all cit­i­zens – as to why the rule of law is not some airy-fairy con­cept un­der­stood only by a cer­tain class pos­si­bly viewed as hoity-toity by the other classes. The mes­sage has to be con­veyed that the rule of law is one of the es­sen­tial ele­ments of a welloiled State ma­chin­ery. And, as a log­i­cal co-premise, that a welloiled State ma­chin­ery is in the in­ter­ests of everybody.

How this can be achieved in a coun­try with a deeply-em­bed­ded no­tion of po­lit­i­cal pa­tron­age – the only nat­u­ral rem­edy to a State ma­chin­ery prone to jam­ming – re­mains to be seen.

Then again, one has to con­sider the pos­si­bil­ity that it might be in the na­ture of the State it­self that with­out po­lit­i­cal lu­bri­ca­tion, the wheels can­not turn.

So, the long and short of it is that the rule of law has to be ex­plained, in pop­u­lar terms.

2. The ques­tion of sovereignty

Our present con­sti­tu­tional doc­u­ment, in­spired by the un­writ­ten con­sti­tu­tion of our for­mer colo­nial masters, does not ex­plic­itly state who is sov­er­eign in Malta.

The bat­tle waged by the Na­tion­al­ists in the 1980s was en­tirely premised on this point: who is sov­er­eign in Malta: the writ­ten rules of the con­sti­tu­tion or the Peo­ple?

The Bri­tish con­sti­tu­tion some­what fud­dles this is­sue, and thus also ours. Be­cause, to bor­row some­body else’s way of putting it, it was an ar­range­ment “made by gen­tle­men for gen­tle­men” – it did not con­sider the pos­si­bil­ity that the State might end up in the hands of peo­ple who are not “gen­tle­men”.

I would add that it is also due to so­cio-historical rea­sons.

Bri­tain, the cra­dle of lib­er­al­ism, was gov­erned by a cer­tain class which, at a par­tic­u­lar mo­ment in time, un­der­stood that it had to share its wealth with the other classes, ush­er­ing in the Fabian model of the labour move­ment. At the same time let us not for­get that, at least in the first half of the 19th cen­tury, some Tories were hugely con­cerned with work­ing con­di­tions, and sim­i­lar “so­cial” is­sues. Some of these peo­ple were in­spired by re­li­gious prin­ci­ples or sen­ti­ments, oth­ers by other con­sid­er­a­tions.

The Ital­ians had a dif­fer­ent historical ex­pe­ri­ence. Their State was taken over by a dic­ta­tor and his to­tal­i­tar­ian regime in the 1920s and their post-War con­sti­tu­tion re­flected, and re­acted to, this trau­ma­tis­ing ex­pe­ri­ence.

Our con­sti­tu­tional doc­u­ment opens with a state­ment which echoes the first part of ar­ti­cle 1 of the Ital­ian con­sti­tu­tional doc­u­ment: The Repub­lic is demo­cratic and is based on work.

But our con­sti­tu­tional doc­u­ment did not echo the sec­ond part of ar­ti­cle 1 of its Ital­ian coun­ter­part. This sec­ond part ex­plic­itly states that sovereignty be­longs to the Peo­ple, which ex­er­cises it in the forms and the lim­its of the Con­sti­tu­tion. Our Con­sti­tu­tion in­stead refers to the re­spect for the fun­da­men­tal rights and free­doms of the in­di­vid­ual.

Are the two con­cepts – fun­da­men­tal rights and free­doms, on the one hand, and ex­er­cis­ing sovereignty in the forms and lim­its of the Con­sti­tu­tion, on the other – the same thing?

I doubt it. My gut feel­ing tells me that when the Prime Min­is­ter’s Chief of Staff opened a se­cret com­pany in Panama, he did not harm our fun­da­men­tal rights and free­doms. What he harmed was the Con­sti­tu­tion of Malta, and the spir­i­tual well­be­ing of the na­tion.

3. The Spir­i­tual Well-Be­ing of the Na­tion

The Ital­ian Con­sti­tu­tion, in ar­ti­cle 4, speaks of this strange, pos­si­bly airy-fairy con­cept.

It im­poses on ev­ery ci­ti­zen the duty to carry out an ac­tiv­ity or func­tion which con­trib­utes to the ma­te­rial or spir­i­tual progress of so­ci­ety.

What ma­te­rial progress is, can be eas­ily un­der­stood by everybody. What con­sti­tutes “spir­i­tual progress” is an­other story. Fur­ther­more, the im­plied link be­tween mat­ter and spirit should also fea­ture in the un­der­stand­ing of this con­sti­tu­tional pro­vi­sion.

To my mind, it is un­doubt­edly a phrase we can learn from: “the ma­te­rial or spir­i­tual progress of so­ci­ety”. My in­stinct tells me that it could lend it­self well to the no­tion of rule of law.

Then again, it’s al­most politi­cole­gal po­etry.

It would surely sound jar­ring to the ears of an English­man. It’s too flowery, too the­atri­cal, too... Ital­ian.

But that’s be­cause of his­tory. And frankly, the his­tory of nei­ther Bri­tain nor Italy is our his­tory.

Yet we can learn from both of them.


At this par­tic­u­lar junc­ture in the life of our young na­tion, I think we need to learn from three historical sources. Our own, that of our for­mer colo­nial masters, and that of the peo­ple who are cul­tur­ally clos­est to us.

This does usu­ally hap­pen, al­though it seems to me un­con­scious. I think we now need to make that process emerge from the depths of the un­con­scious and take its place above the sur­face, in the space in­hab­ited by con­scious anal­y­sis.

Slavoj Žižek loves em­pha­sis­ing that there are four kinds of knowl­edge. We know what we know. We know what we don’t know. We don’t know what we don’t know . ... But, some­times we also don’t know what we know.

I think that in terms of con­sti­tu­tional work­ings, we need to cod­ify (make known) what we know but we don’t know that we know.

The prob­lem, need­less to say, is how to work out the rules which are to gov­ern and run the State.

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