25 May 2013 Riformi Kostituzzjonali (11) : Maltatoday 20 ta’ Settembru 2011
Tuesday 20 September 2011 – 07:34
No country for old men | Franco Debono
Nationalist backbencher speaks out on the need for a new Constitution, a less polarised culture and a society based on meritocracy.
It has been a bizarre year for Prime Minister Lawrence Gonzi, who prepares to address the masses on Tuesday night on the Granaries, in Floriana, to mark Independence Day which signals the resumption of political business after three long hot summer months.
From an unwanted divorce bill, to public anger at ministerial salaries’ increases, to internal bickering, hung parliamentary votes, the embarrassment of US embassy cables, a disastrous start to Arriva’s take-over of the public transport system, a downgrade by Moody’s and the war in Libya: 2011 may be easier described as Gonzi’s ‘annus horribilis’.
The fact remains however, that the Prime Minister still has another two full years in office to serve, albeit with the prediction of more bumpy rides along the way.
Leading the House with a one seat majority, Lawrence Gonzi is forced to walk a tight-rope and balance his way to safety by conceding to the constant demands of his MPs.
Among the first MP’s to show ‘dissent’ was Ghaxaq newcomer Franco Debono, who at 33 ousted veteran minister Louis Galea on the fifth district.
In December 2009, Debono had deliberately absented himself from two parliamentary votes in a bid to protest at the way important reforms were being sidelined and backbenchers’ voices were not being heard.
A criminal lawyer by profession, Franco Debono has since moved on to become a parliamentary assistant within the Office of the Prime Minister, he chairs a parliamentary committee for the codification of old laws, has become a prime mover for Constitutional, judicial and police reform, and is also paving the way for the introduction of a party-financing system.
Debono refutes the ‘rebel’ tag. “A rebel? No way. I am a representative of the people in a parliament in the 21st century,” and asks if somebody who proposes reforms should be considered a rebel.
“I have done my utmost to keep interest on party financing alive both internally, and in public,” Debono says, revealing that after months of evaluation of a failed draft some years back by the so called ‘Galdes Commission’ – a new draft bill has been drawn which is expected to be brought before the PN parliamentary group for discussion and eventual publication as a White Paper.
“For the first time we are talking about a Bill, a draft law, not a report,” he says.
Debono is optimistic about the progress made on party financing: “I had the courage to raise the matter and pursue it, since I consider this law as fundamental to our democracy. It should have been enacted long before I was elected to parliament.”
He laments that people in general are not aware of the fundamental importance of this legislation. “Unfortunately, people often don’t make the link between this law and a number of issues they might complain about.”
But what is this draft bill on party financing proposing?
Franco Debono explains that the key element of the law is a guarantee for transparency, whereby political parties will be obliged by law to publish their annual accounts.
“The draft proposes disclosure by the parties of significant donations, and most importantly more stringent and credible audits of increased amounts to be allowed to be spent by candidates during their electoral campaigns,” he says.
The Prime Minister has already seen the draft, while final touches are currently being made to the document by the legal drafting unit within the Attorney General’s Office. The intention is to have this bill published as a White Paper for the political parties and the public to react.
But political financing is just one facet to Franco Debono’s reform crusade.
A criminal lawyer by profession, Debono has taken on himself to front the major reforms needed in justice and home affairs. Matters, he claims must be tackled fast.
“I have been speaking about these issues in parliament for the past three years. I raised these issues also in court, especially about a suspect’s right to a lawyer in investigation stage.
“I argued on behalf of my clients, that if electronic tagging is introduced, he might be granted bail rather than being remanded in custody, to wait for a witness to testify in the next sitting.”
“I pushed for these rights to be enforced, as it is my duty – like for example – as a criminal lawyer I filed constitutional cases regarding the right to legal assistance, while as an MP I pressured government to implement the law, which still needs to be upgraded.”
In a recent article entitled ‘Visions of Justice’ published in The Sunday Times a week ago, Franco Debono sounded as if he could be Justice minister and listed a series of points that in his opinion needed urgent reform.
Debono doesn’t confirm or deny his ministerial ambitions: “that is not for me to decide. National interest dictates…”
“I think the minister [Carm Mifsud Bonnici] has worked a lot, but still much remains to be done. I try to give my contribution as an MP, and that article you mentioned is really my vision for justice, my contribution.”
While asking if these reforms should have already been in place, he sarcastically asks if they are really important.
“Reforms in criminal procedure, strengthening the police force by splitting investigative and prosecution roles, strengthening the forensic arm, having full-time investigating magistrates, and removing direct ministerial intervention in the phone tapping concerning crime, and transferring it to judicial investigative authorities.”
Franco Debono insists that the time has come for the country to ask for a separation of powers between the law courts and the police.
“A major reform, the result of a holistic vision is required. One cannot address this sector and change it in bits and pieces…”
“In any case, one doesn’t need to be a minister to be a catalyst for major reforms. The presence of lawyers in investigation stage was a major breakthrough in my opinion, even though much needs to be improved.”
So was Franco Debono’s recent outburst in court intended as direct criticism of the justice minister who is currently indisposed after undergoing major surgery?
“First of all I wish the minister a speedy recovery, and secondly I was not criticising the minister. I was defending my client during a normal court sitting. I made pertinent and relevant submissions regarding bail and on other issues related to that particular case. What you describe as an ‘outburst’ constitutes submissions regarding a constitutional referral with which I was dealing and a constitutional case which I filed the day after.
“Constitutional law, fundamental human rights are the borderline between law and politics. However, these submissions were legal in nature…”
But back to Franco Debono’s vision of justice, I tease him into expressing his views on the judiciary.
Should magistrates be able to start their own investigations; even study to become magistrates? Does he think government-friendly lawyers are being given ‘promotions’ to the bench?
“I think we have good judges and magistrates in general. However, in this day and age, more transparency is desirable in these appointments, but then also in other appointments.
“Meritocracy permits talent to flourish. Better conditions like pay and pensions should attract the best candidates. Years and experience required for appointment should be increased, and – yes – they should follow even a one or two year course and sit for exams to become magistrates. Transparency can be implemented in that way…”
According to Debono, retirement age for members of the judiciary should be raised, whereas they shouldn’t be younger than 40 for appointment.
“We cannot afford to lose judges of the calibre of Filletti, Galea Debono, Sciberras and Camilleri at their prime, because at 65, judges are at the apex of their career, they can give their best, having accumulated much experience.”
Regarding inquiring magistrates, Franco Debono says that he has been pointing out flaws in the current system for the past two years.
“Firstly because the same magistrate wears two hats, part-time investigating with the police and then part-time judging cases,” he argues.
“Having specialised full-time investigative magistrates would mean better investigations too, and they may initiate their own investigations, subject however to adequate safeguards against frivolous probes.”
Franco Debono is arguing for the separation between the Attorney General’s office as government counsel, and the prosecution arm. Why?
“The Attorney General is not just that. He is also involved in inquests. The truth is that our laws and judicial system many times are a mixture of aspects from various models, be they continental, British and others due to historical and other reasons.
“Sometimes they blend well and sometimes they don’t. I think even there, we must examine if there is room for reform, especially if we have full-time specialised investigative magistrates who would enjoy constitutional independence and impartiality. How would the Attorney General’s role regarding investigations fit in this scenario?”
Being a politician, Franco Debono likes the media, and is calling for a reform in libel laws.
“I believe that libel should be decriminalised and libel cases should not be decided by a magistrate, but by a judge from the superior courts.
“Freedom of expression is a fundamental human right which is balanced by the right to integrity and respect for reputation,” he says, adding that the Committee for the Consolidation of Laws has already met the Institute of Journalists who now have to forward their proposals.
But is Malta too slow in implementing modern human rights standards?
The presence of the suspects’ lawyer was one such example. What about the European Court of Human Rights decision in Massoud Vs Malta against detaining asylum seekers for 18 months after refusal. Should Malta follow suit?
“With regards to legal assistance to suspects we are still not in line. Assistance must be during interrogation and not just prior to, according to judgements of the European Court.
“Nobody seems to appreciate what the consequences to this are, even though procrastination has led to landmark constitutional judgements, that basically imply that all statements obtained by police prior to 2010 are tainted by a breach of fundamental human rights…
“Secondly, the right of disclosure by investigators must be introduced otherwise lawyers cannot advise their clients,” Debono says, as quotes PN grandee Eddie Fenech Adami who always believed that without human rights, human beings are just slaves.
“The PN always fought for justice and freedom, and the 1987 electoral slogan Work, Justice, Freedom were the beliefs of the party that must be upheld and respected…”
Soon after starting his rant on reforms, Prime Minister Lawrence Gonzi appointed Franco Debono and other backbenchers to the post of parliamentary assistants. What is this office?
“As a backbencher I spoke about the dignity of parliament, not just government backbenchers but all MPs. I spoke about the need for a better and more autonomous parliament, which is the highest and most representative forum of discussion as well as a control to government.
“A parliament which is closer to the people by means of better means of communication, where the focus must shift from party clubs and party television stations to parliament, where all are represented. It is time for political parties to get rid of anachronistic tv stations…”
But wasn’t this a way of ‘throwing money’ at the problem of unhappy backbenchers?
Debono refutes this notion. He considers parliamentary assistants as a positive development within the constitutional setup: “The office of parliamentary assistants is a novelty, and will develop. It has been used in other countries, it has worked and produced results.”
I move on to ask Franco Debono about the controversial divorce debate that split the PN right down the middle. Does he consider Gonzi having made the fundamental error in opposing divorce?
Debono is swift to reply that he himself had voted against the introduction of divorce during last May’s referendum, but as an MP he voted in favour of the law in respect of the people’s will.
“The outcome of the referendum should be analysed in detail, because it is a snapshot of the state of Maltese society. We should look at ourselves as we are, and not as we imagine ourselves to be. A good dose of satire will do us good too,” he chuckles.
Debono however does not believe that the Prime Minister’s vote on divorce will have a bearing in the next general election.
But I argue that Gonzi would surely face the ‘novelty’ of Joseph Muscat as Labour Party leader, whose platform will certainly be that of better governance, and the PN has had a bad experience with that, starting from the Delimara power station extension saga, the divorce debate, the Tonio Fenech affair… So what does Lawrence Gonzi have that is better than Joseph Muscat?
Franco Debono gives me an interesting, but far reaching reply to this, practically calling for a brand new political project for Malta. He strays from defining both Gonzi and Muscat, politely putting them aside and looks at the broader picture.
“This country needs not just a new Constitution to reflect modern times and European reality, as I have already called for in parliament, but a new and less polarised political culture and dialectic.
“The Sunday morning parochial political sermons from party clubs will surely not help to lure talent into politics. This adds to the risk of losing the already existing talent.
“Our towns and villages’ tranquillity should not be disturbed by political bickering on Sunday, a day of rest. Important declarations should be made in parliament.
“Political parties are a means to an end. They serve to build a healthy and strong state, and not the other way round. No one is greater than the party except the people, and MPs represent the people,” he says.
But where does this leave Gonzi in Franco Debono’s judgement?
“I think that the Prime Minister has more experience and has been ably capable in the midst of an international economic crisis and recession