If you’re consistent, you’re not credible

Every so often, we get an arresting view of what a government reigning supreme over constitutional principles might do to rights we still take for granted. One such view was offered when Minister Konrad Mizzi’s lawyer argued in court that Daphne Caruana Galizia’s sources were not protected by the press law since her blog did not constitute journalism.

We got another such view recently, in the legal submissions offered by Ministers Konrad Mizzi, Chris Cardona and Edward Scicluna, in a case instituted by the civil society organisation, Repubblika. What the ministers have pleaded has already attracted some attention but it is so rich in outrageous claims that it takes time to take it all in. Consequently, some of the enormities have passed without comment.

For the ministers offered arguments that, if accepted, would erode political accountability and potentially make suspect any activity not sanctioned by the government of the day.

Some background: Repubblika requested the courts to examine the conduct of the three ministers in the VGH scandal. In showing why it’s a scandal, Repubblika relied on investigations by The Shift. Up till now, the government has ignored the facts unearthed by The Shift. Now, forced to face them, the ministers dismissed these reports simply on account of the fact that they appeared on this website.

Now, let’s turn to the arguments and their consequences if they’re taken seriously.

The first set has to do with the dismissal of the investigative reports by The Shift. Essentially, the reports were dismissed as partisan attacks by this site’s editor, Caroline Muscat, who was characterised as an anti-Labour hack.

Muscat has replied by setting her actual record straight – a record of holding the preceding Nationalist-led government equally to task, both as a Times of Malta journalist and as an activist for Greenpeace. Despite the thoroughness of her piece, though, it doesn’t go far enough.

For what the ministers do in their court submissions is more radical than just being deeply misleading about an individual’s record. Their arguments rest on two other assumptions. One is that any past political alignment – taking the term ‘political’ in its wide sense to include any participation in organisations with a legitimate political point of view, including unions, environmentalist and pressure groups – renders suspect anything you say ever after.

The second assumption is that consistency in your criticism undermines your arguments. Please pause to savour this point implied by the ministers: Consistency is the mark of unprincipled bias, not principle. If you’re consistent, you cannot be credible.

Once you see that these are the assumptions, you will see that it is not nearly enough for Muscat to defend her record as a consistent critic of all governments. That could simply mark her out as an ‘extremist’ (‘look! She admits to abseiling down a chimney!’) and ‘anarchist’. The ‘hidden agenda’ would simply be that of international organisations (like Greenpeace) instead of local Parties.

Such assumptions can be used to undermine anyone. If you’re reporting for a bona fide trade union media organisation, the Church media, or even ONE News, a future government can say you cannot be trusted.

The ministers slid another assumption into their argument: Their critics offer only partisan opinions, not facts. They do not even challenge this website’s evidence by citing evidence of their own. On the contrary, they want to prevent an independent verification of The Shift’s reports.

In a fact-free world, it’s obviously political power that determines everything. Once facts don’t matter, then truth has no power. Only political leverage does.

The ministers want the Courts to endorse the view that if an investigative report finds evidence of corruption, the ministers don’t have to contradict it. If anything, it’s the investigators that become suspect.

This implication already erodes political accountability. But the ministers said something else that goes further. They claim that the VGH deal was government policy; so it’s a matter of Cabinet responsibility. They, the three ministers, should therefore not be singled out despite their direct role in the VGH deal.

This argument turns the doctrine of Cabinet responsibility on its head. Cabinet responsibility means that no minister can distance himself from another minister’s policy (you need to resign from Cabinet first). Here, it’s been changed to mean a minister can personally distance himself from something he was directly involved in.

The ministers are also changing the status of the doctrine of Cabinet responsibility. It is a political principle. Here it’s being turned into a legal one.

If the courts accept this, the consequences would be great. Who, in the future, should be named in a similar suit? Naming the entire government without identifying a single individual would be too vague and perhaps inadmissible.

Should only the Prime Minister, therefore, be named? That would serve only to confirm, at law, the centralisation of power in one person – even as the government claims to agree with the Venice Commission that our political system needs to reduce the powers of the Prime Minister.


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