In the previous parts of this series, we saw how contracts need honesty in negotiation and good faith in execution, how the civil law fills gaps in contracts and how the Courts help in establishing equity in the enforcement of contracts.
We indicated that there is a difference between private contracts and the social contract – the latter being far weaker and more subject to manipulation by politicians, who may seek to promote their short-term visions without many limitations.
Some are pushing for a review of our Constitution to install a new or updated approach to its colonial mould – maybe a new social contract?
I do not think this is a good idea at this moment. Since Independence we have not had a particularly high level of respect for the Constitution by our Governments, i.e. our political parties. So a process as is being carried out now, whereby the Constitution is changed by the political parties or persons close to them, is not going to change anything.
Politicians have not seen the Constitution as a guide to proper behaviours in government, more so as restrictions on their powers. However, I have to say that our new Prime Minister is very vocal in the direction of unilaterally giving up powers which have been around for many decades.
As is obvious, many are waiting to see words translate into real and positively impactful actions reflecting choices for good and not actions necessarily forced by crises, reflecting long term vision and not strategic balancing acts and most of all being consistent, truthful and not duplicitous. We have seen too many years of leading politicians saying one thing and doing exactly the opposite!
The political parties have hitherto seen the Constitution as an inconvenient obstacle, when in Government. On human rights observance, especially those on private property, the record is abysmal.
Judge Vanni Bonello has written extensively on this aspect and nothing more can be said.
There was, at least up to a few weeks ago, a serious problem of truth in the nation. The intelligentsia, i.e. the intellectual and academic sector, have gone mostly silent in recent years. Have any of our leaders bothered to see why and how this impacts our country?
Unless there is inspired and competent thinking in a country, nothing good can come out of a technical review of a legal instrument, nothing will change but words. Unless the political parties are capable of engendering idealism and long-term visions based on strong ethical principles, we are only living from day to day in a country where ideals are killed at the altar of the economic agendas.
In these COVID days everyone speaks of the common good but how long will this last until it is turned back into selfish agendas which undermine social wellbeing? Will a new Constitution address patronage head on? Will the constitution be the tool for a substantive review of all our laws to reduce the power of governments? Will governments allow for civil society to take its proper place? Will the Constitution provide for the right of popular actions so that ordinary people who see abuse can counter it in the absence of action by institutions which fail?
A lot can be said, but the best advice I can give at the moment is for people to read and listen and learn more from big thinkers around the world and in our own country.
Enjoy listening to Roberto Benigni’s analysis of the Italian Constitution and notice the quality and depth of intellectual thinking around the functions of a constitution in a democracy. Casually read a book by Niall Ferguson on the degeneration of institutions. Read very carefully the book by Francis Fukuyama entitled “Political Order and Political Decay: From the French Revolution to the Present”.
We need an approach based on intelligent and deep thinking of our strengths and weaknesses as a society, we need a sense of wisdom, justice, freedom, a vision for the future, inspiration for democratic living and so on. We need space for strands of different ideas to be open to each other, with respect and not manipulation. We need tools to seek compromise to adopt the best versions for social good, we need the sharing of opportunities and general citizen well-being in a diverse society. We cannot continue with such serious asymmetry between the contract bound citizens when compared to the way they bind (or not!) the state.
Inconsistency is the bane of justice. This is what a new social contract needs to set out to establish.
Now back to private contracts as these continue to operate every day even if we have problems with the State, its governance and the Constitution.
There are many types of contracts, starting from leases and employment agreements, to purchases of land and the booking of flights. What is the ethical content of these contracts? When people start acting inflexibly, greedily and in bad faith the legal system starts to suffer, but its ethical principles are clear for all to see, for those who want to see!
When an economic approach to life dominates, everything is reduced to money. True relationships between people, which operate on a different plain, are demoted to zero. Creditors stop dealing with others as real people and treat everyone as a debtor of money. When a social system veers away from ethical relationships to pure economic dealings, this is what we see happening more and more.
Money is not good or bad, it is people who choose to use it in certain ways.
When people give more importance to money than to their relationships (collaboration, sharing, mutual respect and support, long term relationships and so on), the ethics underlying contracts start to disappear and everyone starts demanding their pound of flesh. Shakespeare had a lot to say about this.
What happens when we see a crisis like COVID-19? It all depends on the quality of the leaders and the value system prevalent in a community. If the leaders carry out their functions and render services to the community in a generous, non-discriminating, lawful and honest way, they generate good behaviours and generosity on the part of citizens. Taboos develop around bad behaviours.
When a political system relies on patronage, it skews the way people operate in a society and how they enter into contracts and perform them. There is an influence of privilege arising from patronage, arrogance arising from protection by power, and abuse arising from wealth generated from privilege. These need to be addressed as soon as possible. Only the community of politicians in any system can do this together as in democracies they alternate.
Citizens have no choice but to continue to enter into contracts with each other all the time.
The people themselves can, of course, have their own prevalent value system, and thank God for that! These will operate irrespective of political leaders and the system of governance in a country and must be preserved at all costs.
This comes from community leaders like parents, teachers, religious leaders, volunteers, honest law enforcement personnel, fair businesses and, of course, civil society and inspired politicians.
We are seeing this value system in operation right now, as we face what is probably the worst crisis since the Second World War. We need this wonderful value system to be supported to thrive for the next five years and then become a stronger national habit, part of our DNA.
With enhancements of the new wisdoms we have developed throughout COVID-19 pandemic, we need to develop what is referred to as “anti-fragility” – which is perfectly encapsulated in the Maltese expression “dak li ma joqtolx, isemmen”.
We grow stronger as a nation with every crisis we overcome.
I suggest you have a look at the ideas being promoted by one politician, the Prime Minister of New Zealand, and the debate which has started to develop around them
What is happening with peoples’ private contracts in this crisis and how should we act? How many times in the last few weeks have you heard the words “force majeure”, ‘unpredictable events’ and ‘overwhelming and irresistible force’ in the context of our obligations under private contracts?
This will be the subject of the next part of this series.
This article is the third in a series of articles by Max Ganado on contracts in the age of COVID-19. The second one can be read here.
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