The Fate of Ideals in the Real World

Article 42 of the International Criminal Court’s Statute lays down that the Court’s prosecutor has to be of “high moral character”.

There are no two ways of interpreting that requisite: high moral character is high moral character. So when the European Investigative Collaboration (EIC) network discovered that former prosecutor Luis Moreno Ocampo had opened a number of offshore companies in the BVI and Panama while in office, Mr Ocampo reacted by saying that it is “not illegal to own an offshore company. It all depends on what you do with it.” He meant that, despite choosing a secretive jurisdiction like Panama, he was still of high moral character.

We have heard that before, I suppose.

But Belgium’s Le Soir and Germany’s Der Spiegel reported that Mr Ocampo went one step further. He claimed that his salary at the Court (€ 150,000 net per year) “was not high enough”. He seems to be arguing that the fact that the salary is low (!) justifies his Panama company, and therefore he is a man of high moral character.

Le Soir and its EIC network partners did not accept this nonsense and denounced Mr Ocampo in no uncertain terms, quoting the “high moral character” requisite.

Needless to say, I am mentioning this case because of the obvious parallelism with Malta’s recent events.

But the parallelism is only partial. In the sense that the Court Statute explicitly lays down the “high moral character” requisite, whereas our Constitution does not have a similar requisite for ministers or people close to ministers.

It was therefore easy for people in Malta to argue that owning an offshore company in the highly secretive jurisdiction of Panama was not in itself illegal, and therefore, not being illegal, had no bearing on the probity of the politicians involved.

I had a long discussion on this point on Facebook with Robert Musumeci, who kept defending the position that, if there is nothing codified, if there is no written law, then owning secret companies in secretive jurisdictions when occupying high political office should not, at the very least, raise eyebrows.

My argument was: while it is true that there is no need to have a written rule, it still stands to reason that a minister and the prime minister’s right-hand man should not own secret companies in secretive jurisdictions when in office. It is obvious that the mere fact of opening them unleashes an uncontrollable swarm of doubts as to the real reason(s) why.

I have no intention of repeating here what has been said ad nauseam on the Panama Papers scandal. Instead I want to spend a few words on the two positions, namely the positivist one (if there is no written law, then there’s nothing wrong) and what I shall call the “idealist” one (even if there is no written law, it is still wrong).

It seems to me that the problem boils down to the codification of rules, in other words the reduction of rules to a written form.

In this, as in many other aspects, we are children of the 19th century. That was the time when the great European powers set out drafting codes of law which aimed to encompass all possible situations. The grandest example was self-evidently the Code of the French, or the Code Napoléon, meant to be the ultimate rule-book that would cover all possible fact-situations.

One of the positive novelties of the codification era was that the laws would be clear and certain, known to all, and serve to protect against arbitrariness. If your laws are written down and apply equally to all, then there can be no judge or other authority who can invent a law after the occurrence of the facts.

One of the negative novelties was the extreme position, namely that only written rules are rules.

This was the major philosophical issue with the Panama Papers scandal in Malta. I am clearly excluding those whose position was dictated by party allegiance (namely those who essentially switched off their brains). Those, instead, who decided to think about the issue ended up either embracing the extreme position (like Robert Musumeci did) or the opposite position, which I have called the “idealist” position (like I did). This latter position accepts that some rules are not written but are binding nonetheless, because they are reasonable.

There is one last point to consider. Whereas the law is silent on the moral character of politicians (whom we nevertheless refer to as “Honourable”...), politicians want to convince us that they are honest and trustworthy, like a good parent of a family (I can no longer write “paterfamilias” because of the times we live in).

In other words, they accept the unwritten rule that a politician has to be a wo/man of probity. Konrad Mizzi and Keith Schembri, therefore, broke the very same rule espoused by the political class itself (whether hypocritically or not). The electorate, however, decided not to punish them.

The point raised by the Italian philosopher Benedetto Croce in his Etica e Politica is quite pertinent. Croce argued that whereas many insist that politicians should be honest, and that honesty should be more important than any other characteristic for politicians, nobody actually cares about the honesty and probity of a surgeon or doctor when one’s life is at stake. When you need a cure, you look for a good doctor, irrespective of whether he is honest or dishonest.

In other words, Croce argued that if when you need a surgeon you couldn’t care less about the surgeon’s personal honesty (as opposed to his technical expertise), similarly when the nation needs a politician, it should not waste time with the politician’s probity but only seek his ability to govern successfully.

Croce is obviously right. But only superficially so.

Because his analogy is with doctors and surgeons, implying life-threatening situations. Yes, if the body of the nation risks dying – for instance, in times of war – one does not care about the probity of politicians. If a corrupt politician can help the nation survive a war, then let him or her be in power.

But in normal circumstances, Croce is wrong. In normal circumstances, when there is no crisis, you need honest politicians. Otherwise, the nation ends up feeding a class which is not there to serve but to grow rich at the expense of the public purse and other public sources of wealth.

reason(s) why. I have no intention of repeating here what has been said ad nauseam on the Panama Papers scandal