Let’s not get lost in details | Franco Debono

Lawyer and former thorn in the Gonzi administration’s side Franco Debono argues that the important thing now is to press ahead with a party financing bill, and leave the fine-tuning for later.

Franco Debono
Franco Debono

For the last few years one could hardly open a newspaper without finding at least one story quoting Franco Debono: the Ghaxaq lawyer and 'rebel MP' who deprived the former Nationalist government of its parliamentary majority on more than one occasion, and who was perceived as one of the prime causes of its landslide defeat last March.

Yet with so many factors now seemingly vindicating his earlier positions on many issues (as he reminds me almost endlessly, the Justice Reform Commission report echoes all his own arguments almost to the letter) Debono has been surprisingly quiet of late. Not even the publication of White Paper on Party Financing - a subject he has championed since 2012 - has so far elicited a reaction.

I meet him at his legal office on Strait Street, Valletta, and find the usually combative lawyer in a conciliatory mood.

"Do I feel vindicated?" he muses, echoing my question. "Not really. I'm just satisfied that many of the things I have been arguing about and trying to draw to public attention are finally being addressed. This is good for everybody... Malta will be a better place with this law..."

But at the same time it was only a year ago that Debono was publicly vilified as having 'betrayed' the party he once formed part of, in part by insisting on reforms that his own government had either neglected or ignored altogether. With many of these reforms now in progress, some of the very people who criticised him at the time - not least the Nationalist Party, which had even formally 'condemned' Franco Debono by means of a party resolution - are now singing a slightly different tune... seemingly agreeing with things they had argued against in recent years.

Does he have no comment to make about the apparent volte-face? He shrugs. "I don't see any point in dragging all that up now. Let bygones be bygones."

One other thing he had also argued about at the time of his 'condemnation', he reminds me, was the distinction between a member of parliament and the party which he or she represents. "It was the subject of my thesis: an MP is not a party delegate, but a representative of the people elected on a party ticket. The focus should be on parliament, not the parties. Part of the problem that the party financing bill will hopefully address is that political parties have outgrown their stature, and have dwarfed parliament as a result. To this day, Malta remains the only European country where political parties are not regulated at law. They have been left free to do whatever they like, unaccountable and unanswerable to anyone..."

He does however acknowledge that the country has taken a very erratic approach to the issue of party financing, which he reiterates is of pivotal importance to a functional democracy. "First it was nothing for 20 years; then in the last two years alone there was my bill presented in parliament, followed by a White Paper... so at least, things are clearly gaining momentum."

For all his magnanimity, Franco Debono does not resist taking credit for kick-starting the entire process. "My first ever speech as the youngest member of parliament was about party financing. Here, let me find it for you..."

One quick internet search later he reads out his own words to me, across a continuum of four years: "'The time has certainly come when our country, like all other European countries, has a law which not only regulates the financing of political parties but also their organisation and internal functions as orgainsations of Constitutional relevance... The reality is that political parties are not just political/social entities but an integral part of the Constitutional structure...'"

Coming back to the White Paper, he argues that the situation as it stood when he made that speech - and still stands today - was "surreal".

"I am a big fan of Salvador Dali," he adds. "I like surrealism in art. In politics, however, it is another matter."

It was surreal, he insists, that there was no legislation whatsoever governing how political parties conducted their affairs. "Even a village band club is regulated by the Voluntary Organisations act. How much more should a political party, which has such responsibilities towards the public, be regulated?"

The worst situation imaginable, he adds, is not is not to have a law at all. "So even just having a law is itself a step forward. If it needs tweaking, so be it. That can be done later. But we have to take that first step."

All the same, the White Paper has been variously criticised since it was launched last Monday. Despite an apparent consensus on the principle, there is still broad disagreement on the details. Alternattiva Demokratika has complained that the proposed thresholds are too high - an opinion now shared by the PN, though it had argued the opposite way in 1995 - and perhaps more cogently that the Electoral Commission is an unsuitable entity to enforce such regulations, as its members are nominated by the same parties which they will now have to regulate.

Elsewhere, PL secretary Toni Abela has argued against the imposition of any spending thresholds for electoral candidates at all.

Franco Debono himself consistently reminds me that the White Paper is openly based on his own draft law, tabled in 2012. How does he counter criticism of what are effectively his own proposals?

"I welcome the debate," he replies abruptly. "The aim of the White Paper is exactly that of sparking a debate about the subject; to create awareness about the importance of regulating party financing, and to listen attentively to the criticisms and proposals wherever they come from. Both Toni Abela and [PN secretary] Chris Said's views will be listened to attentively and analysed. The White Paper cannot have the desired effect if people don't come forward with their criticism and proposals."

But surely he has opinions of his own. What does he think of the objections? Let's start with the issue of electoral spending: does he find it surprising that a socialist politician would recommend a free-for-all which would automatically advantage very wealthy candidates over less affluent ones?

"My view is that a good law should strike a balance between the interests of transparency, and the existence of political parties which have their own needs. Political candidates need to spend money on campaigns, and the national interest demands that this should be done transparently. But how do you fix amounts?"

The answer, he adds, involves another balancing act: this time between the expenses involved in electioneering (and here he confirms that these are considerably higher than the maximum threshold already in place); and what he describes as a 'political principle' which should, in theory, create a level playing field for everyone.

"Electoral success should not depend solely on one's pocket. If it were up to me, I would stand by that principle and enshrine it in the law. But I'm not the one calling the shots here. I voice my opinion like everybody else, but it is up to others to actually legislate."

On the subject of the cited maximum limits for individual donations, Debono proves impatient. "Let's not get lost in details. If you remember the Galdes Commission report" - the 1995 document which sparked an abortive debate on party financing - "the issue we all got stuck on back then was the amounts. Let's not repeat the same mistake. At the moment the important thing is to introduce a legal structure so that political parties can be regulated. Later we can have a debate on the thresholds..."

He also envisages speedy solutions to these teething problems. "I haven't read Chris Said's suggestions for lower donations thresholds in detail, but let's for argument's sake say he suggested a maximum donation of €30,000 instead of €50,000. It's not exactly very difficult to find a middle road..."

Other objections may however prove harder to resolve. Many might sympathise with AD's concerns with the Electoral Commission being largely politically appointed. Wouldn't it make more sense to invest the authority to investigate parties in a separate parliamentary entity?

"I think it would make more sense to revamp the Electoral Commission," he replies. "For one thing it's already there... a separate parliamentary committee would have to be created, resources would have to be invested, etc. But I do agree that the Electoral Commission needs reforming. So why not use the party financing law as a pretext to reform the commission, instead of reinventing the wheel?"

One final concern is that the proposed law in its present form seems very easy to circumvent. The larger political parties have vested commercial interests of their own, also including media companies. The White Paper makes no reference at all to such entities. Surely, then, all a prospective donor would have to do to sidestep the legal donations threshold would be to simply take out advertising with those companies, instead of handing the party a cheque?

Debono however vehemently denies that the parties' commercial companies have been overlooked. "The White Paper makes it clear that it is based on the bill I presented in 2012. That bill did make reference to the party's commercial operations. It's in the definitions, laid down in section 5."

Donations to companies owned by political parties are therefore covered by the legal definitions of party donations, at least in his own proposed bill; but Debono acknowledges that there is no legal limit to the amount one can spend on advertising with a political party-owned station.

"One of the main inspirations for the 2012 bill was Cynthia Bauerly, the chair of the US federal Election Commission. I had met her when I went to the UN Congress in New York with Lawrence Gonzi, and we had discussed party financing.She told me then that any country's party financing laws can only be a 'work in progress'. This applies to the issue of thresholds: expenses change over time, and the law must be updated to reflect that. But it also applies to ways of circumventing the law itself..."

In America, he goes on, party financing laws do not cover voluntary foundations. "So political parties simply set up foundations and the donations go to those instead of directly to the party. There will always be some way to circumvent the system. It's like theft. Theft is a crime but it doesn't mean that people don't steal. It's the same with making illicit party donations."

Paradoxically, he argues that it is even in the interests of 'donors in bad faith' to have a functional party financing law in place. "It is in everybody's interest to have more transparency. That includes the parties themselves, who have an interest in addressing popular perceptions of corruption. It obviously includes the bona fide donors who want to see their party grow and improve. Even those who donate in bad faith... for example, on the understanding that they will get something in return... have an interest in knowing the actual financial state of the parties, and to have some kind of guarantee as to what use the money will be put to."

All things told, then, Franco Debono has no complaints regarding developments on the party financing front. But the same cannot be said for other causes he has championed.

One such issue was the right of legal assistance during police interrogations. Debono argued in favour of this right for years, and also successfully overturned a number of criminal convictions on the basis that his clients were not legally represented while under arrest.

Maltese law now does provide for the right to basic representation, but under scrutiny the new system leaves much to be desired.

"As a member of parliament I had issued a press release five years ago about the lack of legal assistance to arrested persons and the inadequate system of legal aid. As a lawyer I was the first to file Constitutional cases about the right to legal assistance for arrested persons, which I won. And everyone knows the enormous consequences of those judgments..."

Despite having secured the right to legal representation, Debono complains that the entire structure which provides that assistance to those most in need - i.e., people who can't afford the services of a private lawyer - has remained unchanged.

"Do you know how much a legal aid lawyer makes?" he asks me. I shake my head. "It works out at around €200 a month. With that sort of remuneration I must congratulate Malta's legal aid lawyers for doing a sterling job. But how can anyone consider that an adequate legal system?"

Nor is this the only problem. Such lawyers are selected by roster, and must handle civil, commercial and criminal cases regardless of their own area of specialisation. So even if there are lawyers on the legal aid programme who would be better suited to represent a particular case - for instance one which requires in-depth knowledge of civil law - it will be a random lawyer to take the case, not for any professional reasons but simply because his or her turn was up on the roster.

And in trials by jury, only one legal aid lawyer is made available.

But perhaps the most bizarre anomaly concerns the source of these lawyers' meagre remuneration: the office of the Attorney General, which also represents the public prosecution.

"Having legal aid lawyers paid from the budget of the Attorney General, who is public prosecutor and thus in general an adversary to the same legal aid lawyers, is also of great concern. As is the discretion given to the AG to decide whether a case is heard in the lower or upper courts..."

Reforms of these and other legal issues are supposedly in the pipeline owing to the ongoing Justice Reform Commission, which - as Debono once again reminds me - modelled its report on his own past recommendations.

But Debono hints that further delays may result in additional judgments against Malta in the international courts.

"In my opinion legal aid is not only inadequate but it also fails to fulfil the criteria and spirit of the Constitutional and European convention's requirements. In fact I have just filed a recourse in the Constitutional Court over this very issue."

So I guess we haven't heard the end of it yet...

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@ Haggi Taf minn dahak in-nies bieh, minn ha xebba ta'voti, mela min qal is-sewwa u gew fi kliemu. Issa kompli idhaq.... Ha ha
Franco Debono is a very colourful person. Very true that a lot of people do not trust him and they might have a good reason for that. But when it comes to courts, I would want Franco Debono to be in my corner, the only problem is that like most other people I cannot afford to hire him. As we can see he represents some of the richest and some of the more famous people in Malta and that leaves you and me out in the cold. Then there is the political side of Franco Debono and in that area he is not trusted and with a good reason. If in doubt, ask ex PM Lawrence Gonzi and his sidekick Austin? Gatt? On my part, I still blame Franco Debono and Austin Gatt for the downfall of the PN election. These two went head to head as to who was the more powerful and more stubborn and Franco Debono won the battle. And that is where many have to question the political integrity of Franco Debono. Otherwise the man is no fool and he knows how to win, even if it takes him years and make a lot of enemies to do it. I always said, even before the general election never to discard Franco Debono because Franco is here to stay.
Heroes are not always cast in bronze, put on a pedestal and having pigeons sh*tting on them. Franco Debono will always and forever be the people's HERO. He will be remembered for having fought tyranny, political deceit and for standing up to be counted in the face of political murderers. Long live the virtues this man was borne with. Hip Hip Hurrah! Hip Hip Hurrah!
Il-Haggi... Ghaiex qed tghid li Dr.Franco Debono qed idahhak in nies bih, nahseb iktar nafu min kien u ghadu idahhak in nies, kompli bil missjoni tieghek Dr.Debono ghal gid ta kullhadd ghax hawn min ma toghgbux li jkun hemm il ligi tal partiti ghar raguni li jafu bihom huma biss, dejjem riedu jibqghu itawlu fiha..Well done Commissioner,keep on the good work.
Hallina Franc.....ghadek ma xbajtx iddahhak nies bik?