It seems that the government is at loggerheads with the judiciary at present, and we are witnessing how spiteful the government is getting in its regard.
Not only does the government not respect judgments that it does not like; but it actually challenges and defeats them by an Act of Parliament, so that ultimately the situation is that the government has the last word.
We have witnessed this in two cases lately: one, in the decision given by the Inferior Court of Appeal regarding the police power to obtain information from mobile phone companies regarding their clients’ whereabouts; and the other, the decision of the Constitutional Court regarding temporary emphyteusis (cens).
In each case the government received a scolding; but instead of respecting the decision of the courts, it has already stated that, in the mobile phones case, it is going to amend the law so that the secret service or the police will be able to get the information from the mobile phone companies as to our whereabouts. Even though we will not be subject to an investigation, if we happen to be at the wrong place at the wrong time we will now be scrutinised by the police. So the mobile phone companies who resorted to the Court of Appeal for redress from the decision of the Data Protection Appeals Board, are now worse off!
In the Constitutional court case, the court ruled the provision of the law which converts the cens into lease is anti-Constitutional, because it deprives the individual of the right to his property. The government also chose to defy that ruling and adopted a new law, with the unanimous approval of all 65 members of Parliament, so that now all temporary emphyteusis is converted into lease upon its expiry. Again, the owners who went to court to challenge the law, are now much worse off than they were before.

I worked at the Attorney General’s office for 10 years and if some of you are familiar with our Criminal Code, you will witness that many amendments to that code are the result of court decisions that did not go well with the Attorney General and the establishment.
Those who challenged certain provisions of the law and were proven right by our courts were punished by subsequent amendments to the law, which make the work of the defence more arduous.

It is no wonder, therefore, that the man in the street is rightfully asking: is it worth going to court to challenge the law and safeguard one’s fundamental rights? By the looks of it,the answer is “No”, because there is a chance that if that decision gets in the way of government, the result will be a more stringent law.
As we know, although the laws are passed by Parliament, as long as the government has the majority of seats (and most of the time it also has the support of the Opposition), Parliament is rendered a mere rubber stamp of the government’s will.

In our university days, we were taught that democracy means that Parliament, Government and the Judiciary are independent of each other, and at the same time they can check upon each other. As long as all three are on the same platform, democracy is healthy. Once one of these three pillars starts to show its teeth, then democracy is in a crisis. In Malta, this is exactly what is happening. Our politicians, some of whom I am sorry to say portray themselves as champions of democracy and even teach the subject to our university students, are showing their teeth and in sodoing, they are sending the message that they are in control.

And when either Parliament or the Judiciary or the government sends that message than that democracy is in a crisis. You may tend to equate democracy with the right to write and speak your mind. That is just the tip of the iceberg, and I do not blame the people for feeling that as long as they feel secure in this country, they will feel no need for a change in what is going on around them.

But the problem is now much deeper than that. Before the same government accused the Mintoff administration of instability in the democratic process, mainly by pressurising judges, riding roughshod over their decisions and even by ransacking the courts building. Nowadays, I dare say that not much has changed: the only difference being that the approach is now more refined and subtle. But the end result is still the same. Ironically, Fenech Adami, who championed fundamental human rights so much, is the same person who is signing the laws that defy the same rights today!
Politicians sell their soul for the sake of votes. The recent amendments to the temporary emphyteusis law, commonly known among lawyers and the judiciary at Chapter 158, is precisely the typical example of how votes come before the respect for the rule of law. In the decision of the Constitutional Court, our 65 Members of Parliament could foresee that if that decision was to be enforced, they will lose many votes because it was a decision which affected mostly the tenants, and tenants are more numerous than property owners. So obviously, the only way to securing the votes of the majority was to accommodate the tenants and defy the court.
I think this is happening because the majority of stakeholders are allied with the government, and the government is keeping its soldiers happy. And the Opposition is still too weak to challenge this tower of strength that the Nationalist government has managed to sustain in these 20 years. At this moment in time, this tower is bulldozing everyone and it seems that both the Law Courts and Parliament are helpless and cannot stop it. This is where the crisis comes in, and it is a pity that the judiciary has still remained silent on the matter.

We cannot sell our soul for the sake of promotions or to remain in the government’s good books. Otherwise, we might as well scrap Parliament, scrap the Law Courts and leave the government rule, make laws, and give judgments all on its own.
At least, in that way, we will not be fooling each other.