Franco Debono

Since I will be replying to an opinion piece penned by Carmel Cacopardo in last Sunday’s edition of this newspaper, about what he perceived as some mess, I had to resist the temptation of including him in the title for two reasons. Firstly, because Mr Cacopardo was not in a position to legislate, let alone create a mess in party financing legislation, and so he does not merit having his name in the title – not even attached to a mess. Secondly, because it would have only served to shift the focus from the real culprits, who have been responsible for one mess after another in party financing legislation, justice and constitutional reform – Tonio Borg and Carm Mifsud Bonnici – but who, for some mysterious reason unknown to me, Mr Cacopardo finds very difficult to criticise, moreover unjustly addressing his criticism elsewhere.

For the real mess was left behind by Carm Mifsud Bonnici and Tonio Borg, who failed to legislate on party financing for 20 years, leaving a situation that is wide open to gross abuse. Malta was the only European country without any party financing legislation whatsoever. Yet again, another mess was created by a draft bill penned by Ugo Mifsud Bonnici (which his son should have written), which when sent to the Council of Europe’s Group of States Against Corruption (GRECO) in 2011, was sent back and almost ridiculed as a non-starter. On the other hand the current legislation – whilst unfortunately not meeting Mr Cacopardo’s standards – received positive comments and praise from GRECO and, if anything, constitutes a huge and historic step ahead, moving away from the highly dangerous state of complete non-regulation of a sector so prone to abuse and corruption.

Yet, apart from the misleading impressions the title of his opinion piece might convey, he is only concerned about just one aspect of the Law – the Electoral Commission as the body that will oversee and administer the law, thereby jumping on the Tonio Borg bandwagon. It should be kept in mind that the Electoral Commission is a constitutional body which, in this country for the past 50 years, has overseen all elections – general, local and European Parliament – and referenda, which are the most sensitive events in the democratic life of any country.

But all of a sudden, Tonio Borg – after the Nationalist Party has been embroiled in the Db Group party financing scandal – is having so many reservations about the Commission as the organ entrusted to enforce the Party Financing Act. In reality, when Tonio Borg – the man who, for so many years, did almost nothing with regard to constitutional reform and party financing legislation, criticises the Electoral Commission he is only criticising himself. For if the Commission is plagued by so many shortcomings, why did he not do anything about it in 20 years as Justice and Home Affairs Minister, Leader of the House and Deputy Prime Minister?

Secondly have they not realised that the Broadcasting Authority is similar in composition, method of appointment and powers as the Electoral Commission and also has the power to inflict administrative fines and issue orders? Have they not realised that even the Data Protection Commissioner has similar functions? Have they not realised that they might be seen as clutching at straws, having found themselves with their backs to the wall after the db Group scandal, and that this is just an attempt to shift the goalposts?

But then Mr Cacopardo seems to suggest the not-yet-appointed Commissioner for Standards in Public Life as the ideal office to oversee this law, a proposal that could be even considered once the office is no longer vacant. But what his proposal would have meant is a continuation of the previous free-for-all unregulated mess for some more years, with the current abuses that are being investigated going undetected, for the Law would not have been in force waiting for the Commissioner for Standards to be appointed. Unlike the Commissioner for Standards, which has been established by a new law enacted by this administration (left undone yet again by Carm and Tonio), the Electoral Commission has been functioning for 50years.

This law was extremely urgent and, having waited for some other law to come into force or some new office to be appointed would only have meant more years of delay which this country could hardly afford. But, then again, if the Nationalist Party had not done its utmost to stand in the way of the proposed Constitutional Convention – over which I had been appointed to preside – all these issues, including the possibility of a better entity to enforce this law, could have been discussed.

Basically, following Mr Cacopardo’s advice could have meant that this law would not yet be in force, pending the appointment of the Commissioner for Standards, and hence leaving the alleged breaches undetected!

For it is also incorrect to state that the members of the Commission are some sort of party delegates, when they are not, and that the spirit of the Constitution is the exact opposite. Not only are the members appointed by the President of the Republic on the advice of the Prime Minister after consulting the Leader of the Opposition, but Article 60(9) of the Constitution is very clear and categorical: ‘In the exercise of its functions under this Constitution the Electoral Commission shall not be subject to the direction or control of any other person or authority.’

But then, does Mr Cacopardo not know that the Party Financing Act – whilst based on the draft Bill I presented in Parliament in January 2012, after considering English and German legislation – was also subject to a wide public consultation process and further refined during its passage through Parliament by proposals from various MPs and at all times with the assistance of the Attorney General – eventually being unanimously approved by Parliament, making it a truly collective effort and an exercise in national unity? Did all these people make a collective mess, according to Mr Cacopardo?

Is Mr Cacopardo not aware of the fact – of which he makes no mention – that the Law is so detailed and exhaustive that it also contemplates criminal investigations by the Police and, in fact, Article 24 of the Act makes reference to Article 188 of the Criminal Code dealing with false declarations to public authorities being punishable by up to two years’ imprisonment?

Yet again, one could ask that if this part of the law is so much not to his liking, is it not very awkward that his party, Alternattiva Demokratika, filed a complaint with the Electoral Commission under the terms contained in it? Does that not contradict his claim that this part of the law is a mess? Why did he choose to seek redress and have recourse to such a mess?

Finally, Mr Cacopardo’s arrogant and confrontational attitude is not just an indication of another reason, apart from Carm and Tonio’s lethargy, as to why this country has been without this law for so long – the lack of convergence and consensus due to rigid stands by everyone – but is also an indication of why it has been bad strategy (besides a required constitutional electoral law reform that Carm and Tonio failed to embark upon) that has prevented small parties from making it to Parliament.

Instead of this arrogant attitude, we should strive to reach a consensus similar to that reached in the process of enacting the Party Financing Act itself, a spirit of convergence of consensus that reigned until the Nationalist Party found itself in the middle of the Db Group party-financing scandal, at which point there was an aggressive attempt to move the goalposts. It is only in this spirit of national unity and collective effort which animated the coming into force of the Party Financing Act that we can continue the process of a constitutional reform I had formulated in Parliament pre-2013 and which has now gained momentum by the implementation of the justice reform the Law on the Autonomy of Parliament and various other laws of a constitutional nature.

Let us keep this momentum in constitutional reform and unity is the key.

A Happy Easter to everyone.

 

Franco Debono is a Law Commissioner and consultant to the Prime Minister on justice reform