On 15Th February 2016, the Nationalist Opposition Presented A

On 15th February 2016, the Nationalist Opposition presented a Private Motion regarding the nomination of the judiciary, almost 5 years after another Nationalist Deputy had placed on the parliamentary agenda the same subject concerning a Private Motion regarding major reform in justice and the interior presented on the 8th November 2011. Some days after the Opposition Motion, on the24th February 2016 the Labour government also presented a law draft regarding the nomination of the judiciary.

Almost four years before, on the 12th July 2012, the Executive Committee of the PN decided that Franco Debono, [and other deputies], are not allowed to contest the following general election with the PN, due to the way he had voted in the vote of no confidence regarding the minister of justice some weeks before [1] while ironically at the same time, without having the slightest indication, of what was happening in the Dar Centrali [2], Debono was in Parliament explaining in detail the electoral propositions listed in his motion regarding Major Reforms in Justice and the Interior [3], which analysis one may say that it was reflected extensively in the Bonello Report planned two years later.

In fact, one of the first decisions of the new administration after March 2013, was exactly to set up a Commission led by Judge Emeritus Vanni Bonello to effect an analysis and prescribe proposals in the justice domain, which domain had just seen, some months before the resignation of the minister responsible due to the difficult situation in the sector.

The report which was concluded some months after, strengthened the analysis and proposals made by Debono in the preceding Legislature and reflected what Debono had spoken about repeatedly during five years in Parliament and which finds their culmination in the private Motion regardiong Main Reforms in Justice and the Interior presented in Parliament on 8 November 2011.

[1] ‘Zammit Dimech says that government could have avoided the minister’s resignation – Foreign and European Affairs Committee Chairman Frncis Zammit Dimech says that the motion could have been sooner and chaos avoided’, Malta Today, 2nd June 2012- ‘ In an interview with Sunday newspaper Illum, Nationalist MP Francis Zammit Dimech says that Minister Carm Mifsud Bonnici’s resignation could have been avoided. ‘I believe it would have been a completely different story had Franco Debono’s motion been put forward for discussion in Parliament prior to the motion submitted by the Opposition,’ Zammit Dimech says.’ [2] Franco Debono, ‘Party Democratic Credentials’, Times of Malta 30th June 2012, - ‘Ironically, the PN executive committee’s decision in my regard behind my back without the issue even being on the agenda of the latest executive meeting, came when I was speaking in Parliament about the Reforms former Minister Carm Mifsud Bonnici should have implemented but did not. I was rounding up a thre-and-a-half hour long speech in Parliament outlining my Private members’ Motion vision for justice and home affairs consisting in more than 20 major areas of reform.’ [3] Private Members’ Motion – Mozzjoni 260 – Mozzjoni Dwar il-Qasam tal-Gustizzja – Mozzjoni tal-Onor Franco Debono-Parlament ta’ malta – Il-hdax il-parlament-Seduta Numru-189-12 ta’ Gunju 2012.

Proposti Dr Franco Debono Proposti Kummissjoni Bonello While noting the great progress made these There is no equivalent last ten years in the Police Corps, I suggest the resolution of outstanding matters regarding the police union as well as the payment of arrears due to the overtime of the police corps which should always be motivated and energetic.

1. The separation between the investigative functions 17-measures from 286 to 302 And those of prosecution in the Police Corps.

2. Tools of forensic apparatus, including DNA apparatus In a larger context of a strong forensic laboratory, [which today is almost inexistent] which is fundamental For police work;

3. The separation between the enquiring and judgement One measure, i.e. 53 of magistrates, for the creation of a pool of magistrates specialising and concentrating full time on enquiries;

4. Revision of the procedure of eligibility and the appointment 23 measures i.e. 303 to 335 [in the of experts and introduction and production of ex parte experts Report the mistake 335 must be 325]

5. The right of the lawyer during interrogation regarding One measure no. 449 recent decisions of the European Court, as well as the rule of disclosure, and other ancillary matters.

6. Revision and definition of certain powers of the Attorney 3 measures i.e. 46 to 148. General, as well as the duty to give reasons for his decisions In certain circumstances;

7. Radical reform in criminal procedures, including presented 47 measures i.e. 140 to 164 and 381 to and deferred cases; 400.

8. Revision and reform of the Office of the Legal Aid Lawyer 87 measures from 170 to 257. so it is assured that those who have no means, hireing a private lawyer have the constitutional right to the safeguard of an adequate defence;

9. Family Court reform, with an analysis of the part-time mediator 20 measures, i.e. 265 to 285 Which may have to be reviewed.

10. Revision of the no. of years and experience required for the 40 measures i.e. from 13 to 32. appointment of the judiciary, as well as the whole procedure including the method of selection of judges, retiring age, as well as the judiciary’s conditions of work;

11. Close examination of the consequences of the result of the latest First 20 measures of report. Impeachment procedure, the efficacity of this mechanism and the Commission for the Administration of Justice as presently existing, as an important constitutional check and balance, and whether reform is needed.

12. The immediate introduction of the Act regarding Remedial Justice 13 measures from 418 to 424. Which strengthens the victim’s rights, a well as extensive reforms in various aspects of the Corradino Correctional Facilities.

13. The setting up of a drug court, about which discussions have been Various propositions including Held for a very long time. Measure 391.

14. Concrete steps must be taken so that the document issued by the There is no equivalent Chamber of Advocates ‘Regulating the legal profession in the 21st Century’, which should regulate the legal profession, is discussed, Analysed and implemented by a law;

15. Consideration regarding whether the time has come where certain There is no equivalent Questions [concerning criminality and not national security] by the Security Services are removed from the political authority of the Minister and pass on to investigative or judicial authorities;

16. The criminal libel should be removed, as well as the revision of the There is no equivalent the maximum amount of damages that a condemned person is made to pay when found guilty of libel in order to reflect the harm caused by him/her, considering the means of communication including the internet, and the cases of libel should be heard by the Superior Courts presided by a Judge;

17. There should be a revision of entry requirements that are too soft There is no equivalent for the law course, so as there is a safeguard of the level and professional legal prestige;

18. There should be a radical revision of the justice system regarding There is no equivalent Minors;

19. The Courts of Justice library must be strengthened. One measure i.e. 429 that is equivalent. 20. There must be a consolidation of the Parliamentary Committee There is no Equivalent For the Codification and Consolidation of Laws and the Law Comm- ission so that our country’s laws continue to be adjourned, recodif- ied and consolidated.

21. The developing situation must be closely examined, including the 13 measures from 364 to 376 Small Claims Tribunal, various tribunals, mediations and arbitrage where, in a small country, a substantial amount of disputes are determined by persons who are not judges in terms of the Cons- titution, but part-time judges, and particularly the consequences of a recent constitutional sentence regarding forced arbitration;

22. There must be an establishment of a third level of revision in the 6 measures i.e. 259-264 Form of a supreme court, or on the model of the ‘cassazione’ in Italy, or another equivalent structure;

23. As the jury system is good, there must be an analysis of how it There is no equivalent can be strengthened and refined.

4 The Bonello Report served not only to built and refine further, while confirming and strengthening the validity of the suggestions made by Debono in Parliament but also, as it contained hundreds of recommendations, it was a clear demonstration of an extensive reform required by the justice domain. If any doubt remained that the justice and interior sector required extensive reforms and was in a state of lethargy [at a moment when due to this, a Justice Minister was declared untrustworthy in Parliament] the Bonello Report completely removed this doubt.

On the other hand, while the Bonello Report was commissioned by the government of the day, the reform promoted by Debono was part of it, which party, a few months later effectively welcomed the same proposals. Apart from this the Bonello commission consisted of four expert persons in the legal domain while the Debono reforms were made by him as a backbencher, with the limited means of a backbencher.

Besides, the persistent appeals of Debono in Parliament regarding the system of justice in our country and the need for urgent reforms, were even confirmed by the European Commission of April 2013.

‘The EU’s Justice Scoreboar ranks member states according to the length of time it takes for non-criminal court cases to be resolved. Findings for Malta make for dispiriting reading, with the country rock bottom when it comes to efficiency in dealing with administrative cases as well as litigious civil and commercial cases. On average, the scoreboard found, a local civil case takes some850 days to resolve, compared to 50 in Lithuania, jst under 200 in Poland and around 300 in Spain. A proportionally high number of lawyers – Malta has around 290 per 100, 000 inhabitants, compared to just 40 in the UK, for instance – is not reflected in the size of the judiciary. With around nine judges per 100, 000 people, Malta’s judiciary is proportionally smaller than any member state’s. Slovenia comes out tops here, with 70 per 100,000 inhabitants. Judicial problems may be partly atributued to a lack of resources: the Eur25 per inhabitant Malta spends on its courts is the sith lowest in the EU.’ Malta’s miserable showing in a survey of justice systems across the EU has set off EC’s alarm bells. Justice parliamentary secretary Bonnici revealed yesterday. [4]

An article in the newspaper The Times, written by Alison Bezzina, confirms also the validity of the proposals Debono spoke about repeatedly. – ‘Love him or hate him, Franco Debono was right about the judicial system. He was right when he said that our judicial system was in shambles and that it was in urgent need of reform. Whoever disagreed with him on that must have been wired to the moon or wearing very thick blue shades. But, if Franco Debono’s vociferous arguments were not convincing enough, ther e is now unequivocal proof that you can’t refute. The results of an independent

[4] Bernard Borg, ‘Malta now on trial over its slow justice system-European commission says that judicial reforms must be made a priority.’ Times of Malta 6 may 2013.

study carried by the European Commission clearly shows how the Maltese judicial system is in fact the least efficient in the EU. The EU Scoreboard Study published last week, is a comparative tool that seeks to provide data on the justice systems in all member states. Low scores not only augur badly for Malta’s citizens and their pursuit for justice, but also for attracting foreign businesses and investment.’[5]

However the ulterior irony of history wanted that the same PN [or probably some individuals within the party], that had so much resisted Debono’s proposals in the years 2011/2012, not only welcomed many of them in the document of a hundred proposals of the same party on good governance titled: ‘Let us build New Confidence in Politics’ launched on 6 December of the year 2015, that it was the same PN which on 15 February of the year 2016 presented a private motion in Parliament regarding the nomination of the judiciary, which point one may say that it is one of the most important if not the most important in Debono’s proposals – nominations, discipline, impeachment of the Judiciary and the Commission for the Administration of Justice.

What is the meaning of a Private Motion on Major Justice and Interior Reform? In a conservative system as the local one, where it rarely happens that backbenchers take initiatives on substantial proposals or adopt their own position, [6] Franco Debono did not mind being proactive and go against this practice while going closer to what happens in parliamentary democracies in the world. In fact Debono spoke a lot about the deputy’s role, on the distinction between government, party and Parliament [8]

[5] Alison Bezzina, ‘Justice delayed is justice denied’, Times of Malta 2 April 2013.

[6]’Of the top seven most rebellious MPs in the last parliament, all have been reelected’. – The Telegraph, 11 May 2015 ‘….And this parliament follows from the most rebellious in post-war history. Government MPs over the last five years voted against their party line in more than a third of Commons divisions [35 per cent]. That easily beat the previous record of 28 per cent held by the Blair/Brown government from 2005-2010. There were a total of 110 occasions during 2010-2015 when seven or more Conservative MPs voted against their party line.’ [7] Motion 439-25 of January 2012 – Malta Parliament – Non Debono.

‘ let me now come to the themes of party loyalty and teamwork also mentioned here during the debate. First of all, party loyalty operates within a constitutional framework. Loyalty to a political party is different from that to a band club or football team, especially for a deputy. When a deputy is elected in the name of a party, he also becomes a representative of the people and thus has a primary loyalty towards the constitution and the people who elected him. Apart from that, a Minister cannot use the concept of party loyalty as a pretext to roll over everyone including this Parliament and expects that the backbenchers clos their eyes and lower their heads to all that he decides. Party loyalty is not there for that reason. The backbenchers after all also have to face the electorate and have the duty to to be the voice of the electorate. So even in normal circumstances, deputies of the same party must not be puppets or passive spectators of what the government is doing, as loyalty to the party operates in the context of the separation of powers between parliament and Government. If it happens otherwise, we are thus welcoming – and this is another great preoccupation – a method of presidential management where the Prime Minister and the Cabinet decide everything without the efficacious safeguard of the presidential system which are the President and congresses elected separately in different elections. I believe that this is what is happening due to institutions of weak control including this Parliament. Democracy is not only party loyalty. The constitution is not a manual of party loyalty or licking. Democracy is a system requiring a delicate balance between the organs of the State where, if the Executive has powers without control from the other organs

Debono had no problem going against praxis inherent in the Maltese parliamentary system that backbenchers rarely take legislative initiatives, especially of extensive nature, as well as he asked for political responsibility to be taken by who omitted to propose or effect reforms. The Motion consisted one may say the first Parliamentary attempt towards a holistic reform in justice, where a sector was analyses as a system, and where parts of the system were analysed not only as specific realities but also as part of a larger system as Debono himself explained when he was explaining the motion in detail in five hours of speeches in parliament divided into three sessions.

It meant that in a general sense the PN agreed to these proposals as it was PN deputy Joe Falzon who seconded the motion and the opposition voted in favour and this shows that individuals, or a particular faction in the PN which had withheld the implementation of these fundamental reforms which, after all, agreed perfectly with the PN principles.

While another campaign of Debono in 2008/09 led to an important development of the introduction of the right of legal assistance for arrested persons, this motion led immediately to another historic development in the local system, the separation between sectors of justice and the interior, which was instrumental for making possible the other reforms. Malta was one of the few countries in Europe where the two sectors were linked in the same ministry.

It also meant that that the top of development and maturity of thought over a period of four years where the ideas exposed in various speeches were woven into a holistic system which practically treats all dimensions of the judicial sector.

As the number of proposals were of a constitutional nature, this served also as a start of a conscience and understanding of the need for an extensive constitutional reform. In an interview with the newspaper Illum, [9], Debono had said

‘Reform started neither from my motion nor in the Consolidation committee presided by me and neither in the Bonello Report, but was born in the corridors and halls of the court and is a living monument for the victims who suffered a breach of rights due to defects and lacks in the system which the reform is meant to

so we would be examining matters beyond democracy and the worst territory we could encounter is that of the oligarchy where some clique grabs power or actually, unfortunately, keeps the prime Minister hostage.’

[8] Christian Peregrin, ‘MPs represent the people-Franco Debono’, Times of Malta 28 Dec 2009. ‘He said backbenchers should not be ignored, aspects of the justice system needed to be revamped, and his district in the South, especially Birzebbugia and marsxlokk, needed urgent attention, Times changed, however,and nowadays there was resistance to the concept that ‘no one is greater than the party’. ‘The people are sovereign and the Constitution is supreme. There is no one greater than the people. The people are represented in Parliament. Therefore parliamentarians are not party delegates but representatives of the people elected on a party ticket, which is different.’

[9] John Busuttil, ‘Absent from Parliament but present and relevant in reforms – exclusive interview with Franco Debono,’ Illum 9 June 2015.

remedy. It is good to legislate for the future without forgetting to do justice to those who have suffered.’

Many of the Motion’s proposals were analysed further in the Committee on Recodification and Consolidation of Laws preceded by Franco Debono with Jose’ Herrera and Francis Zammit Dimech as members and with the assistance of Prof kevin Aquilina who actually drafted a Code of Administrative Law which is a novelty in malta. the work of the Committee was mentioned also in the Bonello Report within one of the fundamental reforms concerning the appointment of the Judiciary. [10] Elected in the electing of 2008, from the fifth district instead of Louis Galea and helen Damato, as the youngest government deputy, he lost no time to speak on important reforms – it suffises to see the second speech in parliament on 18 November 2008 where he started discussing two very sensitive and fundamental points i.e. the separation of inquiring and judicial functions of the magistrates as well as the right of legal assistance of arrested persons. Towards the end of the legislature, Debono then said:

‘Democracy is the most fundamental principle in any country; it’s as fundamental as the economy, so let’s not come up with any excuses…Let’s not say, because there is an economic situation, it means we can neglegt democracy…’ Echoing his earlier comments during Tuesday’s Bondiplus, Franco Debono reiterates his basic tenet that ‘democracy is not something you achieve once and then go to sleep.’ It’s alive, dynamic; you have to nurture it, you have to take care of it. You have to be vigilant, to always keep it up to date. I am not happy with the state of our democracy. This was even said by the president of the Republic, by the speaker of the house…even by the prime minister himself, who has on many occasions said – and everybody agrees with hi – that there is need for radical reforms on the constitutional and political front. If these reforms are not affected, the whole population will be a victim.’

Debono’s vision is in the sense that justice reform must be understood in the wider context of strengthening of democracy and constitutional reform. In fact in a Parliamentary speech on 13 July 2011, a Law Bill emending the Civil Code [Emend No. 2] [Divorce Bill] – Bill No. 80- Sitting 383 – 13/7/11 he said: ‘….The time has arrived for political reforms of a certain entity in this changing society. The time has come for the birth of Maltese Constitution in the European Union, of European Malta, reflecting the stage of democratic development in our country. The time has come to totally bury the model of two tribes occupying one territory and to strengthen the identity of one people with different opinions. The time has come for the birth of a Constitution for European Malta with stronger institutions

[10] The final report of the Commission for a Holistic Reform in the Justice Domain – 30 Nov 2013 – Pp 39/40. ‘Thus the second option satisfies the needs of the country. One must also say that this proposal of this commission has been done before as it was also the choice adopted by the Committee Selected by the Chamber re Recodification and Consolidation of Laws in its deliberations, and it is also the choice of the bill for Administrative Code approved by the mentioned Committee. The advantages of this system are many…’

[11] Saviour balzan, ‘Still defiant Franco Debono.’ Malta Today 16 Jan 2012.

8 symbolising this State. Our system is a parliamentary system, and we cannot use a presidential model without the safeguards of that presidential system. In the presidential system you have a separate election for the legislature. In Amerika you have a separate election for congress, which acts later to check and balance for the executive, and so on paper we may say that our system id a parliamentary system. We need to continue strengthening checks and balances in our system so it remains strong.

Mr President, in our system the independence of our judiciary is also subject to checks and balances by the legislative, and thus I believe that if we let these checks and balances break down between the three state organs, we will have a democracy on paper. Without doubt at all we need a parliament that is stronger and more autonomous. The Standing Orders of this Parliament must change to reflect today’s realities, with Parliament having better means of communication. I believe that democracy is based also on the concept that many times we take for granted; an informed and educated electorate. The political issues of today are complex and specialised, and the role of the media to inform the public and keep the public informed is fundamental and forms an integral intrinsic part of the democratic process…’

The same vision is manifested in the speech of the General Council of the nationalist Party in November 2011 – in the second session, Debono said ‘And the second phase is the strengthening of the political and constitutional institutions. Prof Jerzy Buzek, when he was addressing the Maltese parliament last January said ‘if the heart of democracy is the people, its soul is parliament’. And so we must make sure that parliament is more autonomous than the administration, that we adjourn the standing orders giving adequate tools especially of communication so we draw parliament closer to the people.’ Debono said that we must review also the constitutional mechanism of the appointment of the judiciary and other aspects of the judiciary, make sure of the total respect towards fundamental rights including those of arrested persons while strengthening the Police Corps which has made giant steps these last years. These are major reforms, the trunk out of which emerge the other branches.’

Debono says that ‘these are major reforms even according to the same document ‘Our Roots’, the major trunk out of which emerge the other branches, this is our belief, in which we believe, this is our identity, these are our fingerprints. Democracy is always works in progress. You are never ready. As soon as you stop working, the current will drag you back. We must always strengthen and adjourn it. We all want to live in a democracy. A full democracy, a strengthened democracy, a strong democracy, an adjourned democracy. Let us strengthen democracy which is the main root of our belief.’

Then, in an article in The Times of Malta titled ‘Quest for a Healthy Democracy’ on 16 March 2012 Debono stresses –

‘We must also consider a holistic consolidation of all our laws, amendments to, if not a new, Constitution, and reform of the electoral laws. There is need to enact a law on political parties and party financing, a stronger and more autonomous Parliament, with updated Standing Orders, better standing committees and communicating facilities, leading to a more accountable Administration with the promulgation of a new ode of administrative law that the country has never had. We must ensure full respect of fundamental human rights in all their aspects and, at the same time, strong institutions to ensure public order through extensive reforms in the law courts, the judiciary and the prisons, revisiting the Attorney General’s role inour system and his wide discretionary powers. We need to further improve the police corps and have major reforms in the broadcasting and press laws. All this must be complemented by a less polarised and new political culture. Only then can we speak of rights and duties in a healthy democracy.’

Regarding the law of Party Financing, which is also intrinsically related to the practice of democracy, Debono, in his maiden speech referred to the need of the law of party financing. In his first speech, Speech Answering Malta president’s Speech, Sitting 2-Parliament of Malta -12 May 2008, the Hon Debono said- ‘Certainly the time has come for our country, as probably all other European countries, to have a law not only on political party financing, but also on the organisation and internal function of a political party as as an association of constitutional relevance. What happens internally in a political party does not interest exclusively that party only, but has a relevance to the total constitutional structure in which it works. The reality is that a political party is not simply a socio political entity, but an integral party within the constitutional structure.’

In January 2012 Debono presented a Motion with a law bill on Party Financing [12] which eventually became law in the subsequent legislature. This law became effective in July 2015 after a unanimous agreement in the Chamber of Deputies. [13]. In fct the Justice Minister described it as the Debono Law.[14] The Law of Party Financing

[12] Miriam Dalli, ‘Franco Debono presents private member’s motion on party financing’, Malta Today 21 Jan 2012, ‘Nationalist MP Franco Debono has presented a private member’s motion on party financing, Malta Today can reveal. Speaking to Malta Today, Debono Said: ‘I supervised the drafting of a private member’s motion on political parties and party financing. It satisfies all GRECO requirements and goes much beyond,’ Debono said referring to the Council of Europe’s group of states against corruption [GRECO] which supervises member states’ party financing rules. Giving his reasons over the presentation, Debono sais government never implemented the Galdes report finalised over 16 years ago. ‘Despite the years which passed, nothing has been done. Things have taken too long. The PM had made a commitment the law would be in place by the first six months of 2011. This never materialised,’ Debono said. ‘This left me no option but to present the bill. I consider this law to be fundamental for any democracy,’ Debono added, ‘This law is a safeguard against underground networks – if any – which ultimately undermine and corrode the fundamentals of democracy.’

[13]Tim diacono, ‘Party Financing bill passes into law, both parties vote in favour,’ Malta Today 20 July 2015, ‘A Bill to regulate the financing of political parties has passed into law, with both the PN and the PL voting in favour of it.’

[14] ‘Minister describes party financing bill as Franco Debono law,’ The Malta Independent 21 July 2014.

is central and fundamental so that a democracy may be accountable and transparent in every country. [15] As was explained in in Malta Today ‘Debono explained that the sole intention behind the motion was to trigger the necessary reforms after years of sluggish and feeble action’ [16] and this after Debono had been since 2008 pushing the same Reforms.

Nationalist MP Franco Debono said [17] the Prime Minister has known for over a year what I will do and what I think about the justice system.’ Debono told malta Today ‘while the Prime Minister Defends his Ministerws I will defend the national interest in the justice and home affairs sectors.’ ‘ I am conveying the frustration of the people working in the police force, in court and in prison, ‘the criminal lawyer and MP added. On his Facebook, Debono wrote ‘You will have to pay for Lawrence Gonzi’s failures and he will try to steal the merit of your successes. The MP who has been calling for reforms in the justice and home affairs sectors since his election to Parliament in 2008 said ‘instead of defending the national interest, the prime Minister had been defending his ministers for four years.’ Talking to malta Today, Debono listed a number of issues ha has raised since his election in Parliament, including the lack of forensic labs, parole, the right to legal assistance and the need to separate justice and home affairs. He added that it was only thanks to his intervention in Parliament that cassettes were replaced by compact disks in court. Debono explained that the 22-point motion on justice and home affairs he tabled in November is still pending and said that he ‘reluctantly voted’ for the Home Affairs budget vote. ‘The writing has been on the wall for years,’ Debono said. He added that he had always been diplomatic and brought an example of his oligarchy accusations saying ‘I could have called the oligarchy by its real name but I have not’. Many of the themes raised by Debono in speeches and private motions were developed further in the meetings of the Select Committee [Recodification and Consolidation of Laws] which he chaired with Hon Jose’ Herrera and Hon Francis Zammit Dimech as members of the same committee and with the constant help and support of Prof Kevin Aquilina. The same

‘Justice Minister Owen Bonnici hailed former MP Franco Debono for paving the way for the bill to regulate party financing, stating that under the Italian custom of naming laws after the politicians behind them, the bill would be known as the ‘Debono law’. He noted that the Galdes Commission appointed in 1994 had carried out some good work, only for parliament to fail to follow it up, before hailing the 2012 private members’ bill presented by Dr Debono – who he appointed Law Commissioner last year.’ [5] Saviour Balzan, ‘Still-defiant Franco Debono, Malta Today, 16 January 2012, ‘First off, the state of political parties in Malta is determined by the law. The law is above everyone. But what is the state of the law with regard to political parties? Basically, there is no law at all. As I have often said, political parties are the most unregulated bodies at Maltese law. So we have to start from here…Debono insists that such regulation is fundamental for democracy. But to this day, ‘in spite of my determination, in spite of my pushing so that our country, like the rest of the countries in the EU, enacts this law,’ nothing has been done about it.’ The law itself is already drafted…but they sent the wrong law, drafted by someone else, to GRECO [the Council of Europe’s anti-corruption watchdog]. I had warned them before they sent it…but, probably because there was no communication between the different organs involved, the AG, the drafting unit…they sent the wrong law, without telling me anything before.

[16] Jurgen Balzan, ‘Franco Debono lays out his vision for law reform,’ Malta Today 12 June 2012.[17] Jurgen Balzan, ‘Writing has been on the wall for years’-Franco Debono’, Malta Today 26 april 2012.

11 Committee actually arrived at the compilation of an Administrative Code which is a new development to the laws of Malta. Besides in each meeting there were special guests in the domain of the discussion.

In meeting 1 of the 10 March 2010 and meeting 2 dated 29 March 2010 discussing the process of recodification of the laws of Malta there was Dr Vanni Bruno. In meeting 3 of 7 April 2011, the discussion dealt with advantages and disadvantages of having a Directory of Administrative law and Dr Peter Grech was present. In meeting 4 of 13 April 2010 there was a continuation of meeting 3 and Prof Ian Refalo was invited; also Dr Marse-Anne Farrugia and Dr P. Grech.

Meeting 5 of the 21 April 2010 continued to deal with the advantages and disadvantages of a Directory of Administrative law and the guests were Dr Godwin Grima, Prof Ian Refalo and Dr Marse-Anne Farrugia, This theme continued to be discussed in meeting 6 of 28 April 2010 and meeting 7 of 2 June 2010 had as guest Dr Austin Bencini. In meeting 8 of 9 June 2010 and meeting 9 of 16 June 2010 the discussion was about the Administrative Code and Dr Vanni Bruno was present in meeting 8 as he could not attend meeting 9. In meeting 10 of the 23 June 2010 the Administrative Code continued to be discussed and guest was Dr Vanni Bruno.

Meeting of 7th July 2010, with the Police Code on the agenda, was attended by Dr Vanni Bruno, Dr Janice Farrugia, Architect Carmel Mifsud Borg, Dr Franca Giordmaina and Dr Stephen Tonna Lowell. During a meeting on 12 and 25 January 2011, there was the approval of the first working report of the Committee selected by the Chamber. During the meeting 13 of 1st February 2011, there was a discussion concerning the consolidation of the Press Laws continuing into another meeting 14 of 8th February 2011 during which were present Hon Ms Julia Farrugia, Mr Malcolm Naudi, Mr Mario Schiavone, Mr Joe Vella, Mr Charles Camenzuli and Dr Joeph Mifsud.

During meeting 15 of 14th February 2011, the discussion dealt with the consolidation of Electoral laws attended by president Emeritus Dr ugo Mifsud Bonnici, Dr Peter Grech and Hon Charlo Bonnici. During a meeting 16 of 2 March 2011 discussion dealt on a bill re Administrative Code: Revision of Statutory Laws. In meeting 17 of 14 March 2011 there was approval of the first Working Report of the Select Committee chosen by the Chamber.

Meeting 18 of 15 June 2011 dealt the strengthening of the Right to Legal Aid to Arrested Persons, attended by Dr Giannelle Caruana Curran, Dr Joe Giglio, Dr Noel Cutajar, Dr Stephen Tonna Lowell and Dr Peter Paul Zammit. In meeting 19 of 28 June 2011 discussion dealt with the strengthening of the Right to Legal Aid to Arrested Persons and was attended by Mr John Rizzo, Dr Peter Grech, Dr Edward Gatt, Mr Pierre Calleja and Mr Dominic Micallef.

Meeting 20 of 11 July 2011, with the agenda concerning the consolidation of Criminal Law; this meeting was attended Attorney General Dr Peter Grech, Dr Donatella Frendo Dimech, Dr Michael Sciriha, Dr Vanni Bruno, Dr Stefano Filletti and Dr Vince Galea. Meeting 21 of 12 December 2011 dealt with the Administrative Code and was attended by

The Hon David Agius. Meeting 22 of 7 Feb 2112 dealt with the Administrative Code and Ms Anna Coleiro attended. Meeting 23 of 13 February 2912 with a discussion on the bill of law on the judicial process in Gozo with attendees Dr Grazio Mercieca and Dr Vincent Galea. At meeting 24 of 20 February 2012 a discussion dealt with the Gozo court and during the meeting there was the presentation of an Administrative Law code.

Meeting 25 of 27 February 2012 continued to discuss the Administrative Code which had started during the last session and present there were Dr EdwardZammit Lewis and Dr Austin Bencini. Meeting 26 of 12 March 2012continued discussing the Administrative Code with attendees Dr Raphael Vassallo, Dr Austin Bencini and Honchris Said.

Meeting 27 of 20 th March 2012 continued to discuss the Administrative Code and the guests were Hon Chris Said and Dr Austin Bencini. Meeting 28 of 26 March 2012 had as guest for the discussion on the Administrative Code, Hon owen Bonnici. Meeting 29 of 23 April 2012 continued to deal with the Administrative Code and the guests were Hon Chris Said and Dr Edward Zammit Lewis.

At meeting 30 of 30th April 2012 the discussion concerned the Press Law with guest Mr Malcolm Naudi. At the meeting 31 of 7 May 2012 there was a presentation of the first Bill of the Administrative Code and on the agenda there was a discussion on the consolidation of the Trade laws and were present for the discussion Dr Louis Degabriele, Dr Conrad Portanier and Dr Roderick Zammit Pace. Meeting 32 of 23 May 2012 concerned the consolidation of Trade Laws with guests Mr John Rizzo, Attorney GeneralDr Peter Grech, Dr Vince Micallef, Dr Simon Micallef Stafrace, Dr Lara Lanfranco, Dr Stefano Filletti, Dr Micahel Sciriha, Dr Veronique Dalli and Mr Brian Zammit.

Meeting 33 of 28 May 2012 had on the agenda the Criminal Code and were present Dr Vince Micallef, Dr Veronique Dalli, Dr Michael Sciriha, Dr Ramona Frendo, mr Joseph Sacco, Dr Lara Lanfranco, Mr Abraham Zammit, Mr Natalino Attard and Dr Janice Abdilla. Meeting 34 of 29 may 2012 dealt with the consolidation of the Commercial Code and were present Dr Richard Camilleri, Prof Andrew Muscat, Dr Louis Degabriele and Dr Conrad Portanier.

Meeting 35 of 30 may 2012 had for discussion the consolidation of Media law and were present Dr Joe Mifsud, Mr peppi Azzopardi, Dr joe Zammit Maempel, Mr Joe Vella, Fr Joe Borg, Prof joe Pitotta and Mr Saviour Balzan. Meeting 36 of 6 June 2012 discussed the consolidation of Media law and were invited Dr Joe Mifsud, mr Malcolm Naudi, Dr Nathalino Fenech, Mr Steve Mallia, Mr Saviour Balzan, Mr Peppi Azzopardi and Mr Jason Micallef.

Meeting 37 of 18 June 2012 dealt with the consolidation of Electoral la, Political Parties and Party Financing with guests Prof Kenneth Wain, Hon marie-Louise Coleiro preca, Mr Carmel Cacopardo, Dr Paul BorgOlivier, Dr Stefan ZrinzoAzzopardi, perit Michael Falzon, Mr Michael Brigiglio, Mr peter Darminain, DrGeorg Sapiano, Mr Louis Grech, Mr Jason Micallef, Dr karol Aquilina, Mr James Piscopo and Mr Raph Cassar. Meeting 38 of 22 July 2012, the Committee

Continued the precedent session and the guests were Mr Carmel Cacopardo, Mr Jimmy Magro, Dr Stefan Zrinzo Azzopardi, Dr Adrian Delia, is-Sur Karol Aquilina, Dr Paul BorgOlivier and Dr Paula Mifsud Bonnici.

The Private Motion, the Meeting of the Select Committee of the Chamber [Recodification and Consolidation of Laws], parliamentary speech and declarations on the media constitute the birth and heart of the justice reform that subsequently was confirmed two years later in the Bonello Report and at present are in the process of being implemented.

Private Members Motion – Motion 260 – Motion on the Justice Domain –Motion of Hon Franco Debono – Malta parliament – Eleventh Legislature Session No. – 489 12 June 2012

Hon FRANCO DEBONO: Mr President, I propose the following Motion:

As the Chief Justice[18] during the opening of the forensic year insisted that it could be government is not giving sufficient importance to the justice sector as it is doing to some sectors of the economy, and as justice, in a democracy at any time, must be given due importance, as it is one of the essential components of democracy;

As I have been for the past years drawing attention, by repeated speeches in this Parliament, in the media and other means, as well as internally and continuously in the Party, that in the Justice domains and the interior which, in the great majority of EU countries are separate entities [19] great reforms are needed related to the functions of democracy and the freedoms and fundamental rights in human resources as well as the contents and some sectors, in the mentality and attitude, and I mention some but only the matters on:

1.While I note great progress in the last twenty years in the Police Corps I suggest the resolution of pending matters on the police union as well in the payment of arrears due to the overtime of the police which should

[18] Department of Information DOI Declaration to the media 1855 – 3 October 2011 STO Chief Justice Silvio Camilleri ‘…but we must also not forget the state’s duty to provide resources, financial, human, infrastructural so the Judge may have means and tools to manage cases leading to a final sentence in a reasonable time. I am sorry to say that the executive not to give to the administration of justice the value it deserves independent of all other considerations.. it seems the Executive gives priority to thos activities that in its opinion generate income to the State or in its opinion make the wheel of the economy of the country turn. If this is the case, this means that it is not yet convinced that the justice activity must be given at least the same priority given to the economy of the country. It seems the Executive has not yet realised, or if it has realised, it is not yet searching to effect in reality that the administration of justice within a reasonable time is essential even for economic activity in the country as no economic operator or investor in the country will invest in a country where, in order to collect what is owed to him or in order that a dispute he may have regarding his business takes years to be resolved.

[19] Adjournment of Hon Franco Debono-Extract from Session no. 474-Malta Parliament on 16 May 2012 Hon Debono said ‘And today, four years later, I am still talking about the same things. When one mentions these four years of work one must not forget that it was I that made the Justice Ministry and Home Ministry separate. This was one of the main points of my private motion. But this does not stop there, and I was not the one to come up with it. From all EU countries we, Ireland and another country – Sweden if I am not mistaken – only had a system where the justice ministry and the interior were in strong conflict, were merged together. This situation was not doing any good at all. And I wish to specify that my private motion on justice and home ministries is firstly the fruit of more than ten years of effort in Maltese courts, and secondly the ideas it presents are idea that I heard few people talk about, to be honest, but were my reaction to lacks in the justice and home systems.’

Motivated and energetic;

1. The separation between the investigative and prosecutor functions in the Police Corps;

2. Forensic apparatus, including DNA apparatus, in a wider context of a healthy forensic laboratory, [which today is almost inexistent] which is fundamental for police work;

3. The separation between the enquiring function and the judicial one of magistrates, so that a pool of magistrates is set up specialising and concentrating full-time on enquiries;

4. a revision of the procedure of eligibility and the appointment of experts, as well as the introduction of the possibility of production of ex parte experts;

5. the right of the lawyer during the interrogation in respect of recent decisions of the European Court, as well as the rule of disclosure and other ancillary matters;

6. revision and re-definition of certain Attorney General powers, as well as the duty to give reasons for his decisions in certain circumstances;

7. radical reform in criminal procedure, including presented and deferred cases;

8. revision and reform of the Office of the Legal Aid lawyer, to make sure that whoever does not have the means to brief a private lawyer has the adequate safeguard of his constitutional right to a defence;

9. reform in the family court, where mediation by a part-time mediator is analysed and revised if necessary;

10. revision of the number of years, and experience required, for the appointment of the judiciary, as well as the whole procedure of the method of selection, of the retirement age, as well as the working conditions of the judiciary;

11. a close examination of the consequences of the result of the latest procedure of impeachment, of the efficacy of this mechanism and the Commission for the Administration of Justice at present, as an important constitutional check and balance and whether a revision is needed;

12. the immediate introduction of the Act on Remedial Justice, which also strengthens the victims’ rights, as well as extensive reforms in the various aspects of the Corradino Corrective Facilities;

13. the setting up of a drug court, about which discussions have been held for so long;

14. concrete steps to be taken so that the document emitted by the Chamber of Advocates ‘Regulating the legal profession in the 21st century’, which must regulate the legal profession, be discussed, analysed and implemented by a law; 16 15. one must consider if the time has arrived that warrants for certain intercitation that concern criminality and not national security] at the Security Service are removed from the political authority of the Minister and are transferred to the enquiring or judicial authorities;

16. criminal libel must be removed, and the maximum of damages is revised in relation to the person accused of libel so as to reflect the damage cause by this person, considering also the means of communication including the internet, and the libel cases must be heard by the Superior courts presided by a judge;

17. the should be a revision of entry requirements which at presently are too soft for the entry into the law course, so as to safeguard the level and prestige of the legal profession;

18. a radical revision should be made of the justice system regarding minors;

19. the court library must be strengthened;

20. there must be a consolidation of parliamentary Committees for the Codification and Consolidation of the Laws of the Law Commission to continue to adjourn, re-codify and consolidate our country’s laws;

21. a strict examination must be made of the developing situation, including at the Small Claims Tribunal, various tribunals, mediations and arbitrations where in a small country, a good number of disputes is determined by persons who are not judicial according to the Constitution, but judicial part-time, and in a particular way the consequences of a recent constitutional sentence re forced arbitration;

As in spite of constant calls, there is internally, both in Parliament, as well as in other for a, including in the media,[2] in many of these sectors either nothing has been done or things are very slow in these so sensitive and important areas which have an effect on freedom and the fundamental rights and which have an importance at least equal to the economic sector; Thus I propose that this Chamber of Representatives discusses these matters and discusses the measures and steps that must be taken and how. Mr SPEAKER: Who seconds? HON JOSEPH FALZON: I second. MR SPEAKER: Any remarks: Hon Franco Debono.

[20] John Busuttil, ‘Absent from parliament but present and relevant in an exclusive reform-interview with Franco Debono.’ Illum 9 June 2015, ‘I asked him why the Party ignored him when he proposed hundreds of proposals in justice, in party financing, proposal for the improvement in the south, particularly in BBugia and MXlokk, localities where I was elected and told me: ‘I think that you must put that question to the party or individuals who were in the party at the time. Reforms I was proposing not only are agreed upon by everyone in general, but were totlly in conformity with the political beliefs of the party. If they had been implemented, they would have been of benefit to the party.’

17 HON FRANCO DEBONO: I start by informing the chamber that I wish to move an addition to this motion, to include two points to those mentioned and obviously will read them immediately. I will present this amendment to be able to also deal with the two points. Thus I propose that in motion 260 I have just read, immediately after para 22 the followingis added:

23. ‘that is established a third level of revision in the form of a supreme court, or on the model of the cassazione in Italy, or an equivalent structure;

24. ‘as the jury system is good, one must analyse how it may be strengthened and refined; Mr President, more than an amendment, it is an addition, as I added two points, and thus the point increase to 24.

MR SPEAKER: Who seconds?

HON JOSEPH FALZON: I second.

MR SPEAKER: Remarks? Hon Franco Debono.

HON FRANCO DEBONO: I start to deal with the point one at a time. First this motion is the result of ten years, almost twelve, of Maltese Court work. In the past days I had reservations and comments made by persons who have the righ to comment, but if you are not familiar with court work, if you are not familiar with prison divisions, with the Police Corps, with the Office of the Attorney General, maybe from outside the picture seems one way, but internally when you live it daily with accumulation of experience, even your perception of institutions may change.

This was the fact on 8 November 2011. [21] I am saying this, as

[21] This Debono motion was presented on 8 November 2011 but was not moved for debate before June of 2012 and meanwhile a motion presented by the opposition, i.e. a motion of no trust in the Justice Minister subsequently presented but moved for discussion earlier. In this Motion of no trust [Private Members Motion 280 – Motion of Hon Michael Falzon and Hon Jose’ Herrera re reforms in Justice and Home Ministries [Lack of trust in Justice Minister Hon Carm Mifsud Bonnici Sitting 483- Malta Parliament 29 may 2012] Hon Franco Debono criticises this decision and says:- ‘Mr President, what else did Minister Mifsud Bonnici do? He did not present my motion of justice reforms. That is psychological violence! The party elected me in its name, I had maybe more votes than him, and my motion is not brought by the Chairman of the House Business Committee and presents the Labour motion! As also they did not present the party financing one. I wanted my motion to be discussed. How come it was not presented? As they want me to remain hanging so they may manipulate me! So I remain hanging and they keep telling me that they will present it as well as the one about party financing, which would have reflected badly, not on me as I did it. I did not have to do it. I could have done what a few do here, they come when they feel like it, but not I, I love Parliament. That is why I suffered, as I have principles, Nationalist, I stayed there, twice I was not elected but I stayed as I am a Nationalist. I am as much a Nationalist as the best one in here! And I suffered. I heard Austin Gatt say: I suffered under Labour! I suffered under the Nationalists 18 since that time, and also thanks to this motion, there were things which with satisfaction I must say that we moved about them. The purpose of this motion, as I have read and said, was indeed to act as a catalyst, as a spark, so the things that I tried, by other means, to move, I realised they were not moving and thus I had no other choice but to move this motion.

The motion contains proposals with which one may agree or disagree. From feedback it seems that many of the proposals are agreed upon by both sides of the house and also civil society. There seems to be accord on the urgency and also on the fact that they are essential reforms. In themselves they indicate the way forward and others not apparently so forward looking, reforms requiring legislative intervention and others an administrative one, but you have a variety of reforms contemplated.

Thus the first point I wish to make is that it was a reality on 8 Nov 2011. You had, for example, the Chief Justice’s statement at the opening of the forensic year, saying – a statement of import – that the justice sector did not receive the attention it required. This fact made me go forward and motivated me to make this motion. After obviously speaking many times in this chamber and without on the same issues and matters. I have here two articles I wrote, one in The Sunday Times of Malta of 11 September ‘A vision for justice’ [22] where basically I listed this list of reforms I mentioned, as well as The Times of Wednesday 12 October, ‘Essential Legal and Administrative Reforms’ [23] where I listed elements related to the appointment, removal and work conditions of the judiciary.

So I note with satisfaction that after the motion – as if things were being done or were done, they would not have been included in this motion - as

and a Nationalist with the police behind my door! When she comes out of home my dear mother finds the Police behind the door. ! Why? What did she do?’ ‘Now let me come to my motion. I did this motion. One must appreciate that instability in this country was created actually due to this motion of Carmelo Mifsud Bonnici as they did not want to bring it! At any cost! He told them: Try and delay as much as possible. And they did not bring mine forward to keep me hanging. As if I was going to earn anything out of it! If you want to do it, do it; if you don’t want, don’t do it! This is my sweat, of my ten years of Court work! But let me come now to my motion and quote textually from it. I did this motion one month before Labour’s motion., and it was about things I have been for four years speaking about here! Let us now understand, don’t we have a cabinet government? So you have a minister who already is not implementing things he is supposed to. We are not saying what he did. As to what he did, I say well done to him, as there are good things. Even if you try and do all wrong, you will not succeed as you will do something right. But what he did not do or did wrong and what is serious within his sector!’ Sometimes I wondered: When will discussion on this motion start? As I only heard psychological violence and the sort. In substance and merit I heard very little. They want ideas and facebook and I don’t know what else. My motion was not brought and even the law on party financing. What other ideas can I give them? I gave them ideas. And when things go wrong, they blame you, while when they go well they get the merit, meaning that he who will give ideas must first think well.’ [22] Franco Debono, ‘Vision for justice’, Times of malta, 11 Sept 2011. See Appendix A. [23] Franco Debono, ‘Essential legal & Administrative Reforms’ times of Malta 12 Oct 2011. Appendix B.

19 as a consequence of this motion, some sectors and I will say which were these sectors, started moving or moving faster. As I also said in the motion, there are domains in which we spent years and we could have done a lot but did nothing; and there are others in which things were moving but slowly; and where there are human freedoms, fundamental right, and there are important rights even if not fundamental where slow movement , with every day that passes, result in the breaking of people’s rights [24]. So you have these two elements, inactivity and slow activity.

Separation of the Justice and Interior Sectors. I mention firstly one of the great reforms [25] occurring in this country was the separation between the sectors of justice and the interior.[27] It is black on white in the motion, where I said that in the majority of European Union countries the two sectors are separate. [28] We had in Malta a tradition where in certain legislatures, they were separate and together in others. Across the European Union, as

[26] John Busuttil, ‘Absent from parliament but present and relevant in reforms - - Exclusive interview with Franco Debono.’ Illum 9 June 2015, Hon Franco Debono insisted ‘reform did not start at my motion or at the Consolidation Committee I presided and neither in the Bonello Report, but was born in the court corridors and halls and is a moment to those victims who suffered a breach of rights due to defects and lacks in the system which reform is meant to remedy. It is good to legislate for the future, but let us not forget doing justice to those who suffered.’ [25] Motion 439-Malta Parliament-25 January 2012 – Hon Franco Debono emphasised: ‘ Surely the main reform in justice was not only the separation of sectors but the introduction of the access to a lawyer, though this is not yet enough.’ In Private Members Motion no. 280-Motion of Hon Michael Falzon and Hon Jose’ Herrera on Justice and Interior sectors Reforms [lack of confidence in the Justice Minister Hon Carm Mifsud Bonnici] sitting 483-Malta Parliament 29 May 2012 Hon Franco Debono explained: ‘But let me continue on the private member’s motion. Mr President, in it it is said also that: ‘As I have been doing these last years, by repeated parliamentary speeches, the media and other means, as well internally and assiduously in the party, in the sectors of justice and the interior which are two separate sectors in the majority of EU countries…’ Yet, Hon Austin Gatt said that Minister Mifsud Bonnici is no longer responsible for justice. So what shall he do? Go away immediately? He still has to answer. If he is no loner, he still has to answer. So well, he takes the merit for 166A entering some eight years ago, but as regards six months ago, he does not answer as he has removed it. With all due respect, he removed it as I told the Prime Minister – and everyone knows – that these two sectors do not go together. ‘Reforms are needed on a large scale related to the function of democracy, on fundamental freedoms and rights in human resources, apparata and also in areas of mentality and attitude.’ [26] Separation of the sectors of justice and the interior took place on 6 June 2012, resulting from the impetus of Hon Franco Debono when the latter campaigned assisuosly and spoke about it in his Motion of nov 2011 but its debate started in June 2012. [27] The separation of the sectors brought also about a re-shuffle in the cabinet – ‘Cabinet reshuffle: close to the end of the road’, The Malta Independent, 7 Jan 2012, ‘The splitting of the home affairs and justice ministry in two portfolios is what Hon Franco Debono has been calling for, but this move did not please the Ghaxiaq lawyer who still called for the prime Minister’s resignation. Those who were expecting the uncertainties to continue in spite of the reshuffle were not surprised. Justice has now been taken over by Chris Said, who has also taken over social affairs from Dolores Christina and relinquished his responsibilities for local councils to Home Affairs Minister Carm Mifsud Bonnici, who has also been named leader of the House instead of Foreign Minister Tonio Borg.’ 28 In Jan 2012 it was only Malta, Holland and Cyprus the only 3 EU countries having one minister for justice and home affairs. This situation creates the potential of conflict of priorities between two sectors. One nes.com

Also on the basis of the Commission,’ [29] , you have a reality where two sectors are separate. Unless I am mistaken, Ireland, Sweden and malta were the only 3 countries where justice and home affairs fell under one ministry. This bring certain conflicts between the two sectors as one is minister for the police and the courts, where the same police present their cases to be judged. This situation was not desirable and reflected on certain institutions, among which the function of the enquiring magistrate and the judging magistrate, as I shall explain later.

But I notice with satisfaction that this separation has now been done. I had mentioned this not only in this motion, but in various for a, [31] where I believed that even due to various declarations made by the Chief Justice and also others, it was crucial that the first step was the separation between the justice nd interior sectors. I think that this should have been a strong signal that government would inject the necessary energy for reforms in these sectors and this could only be done with the most fundamental thing – the most fundamental and basic thing, i.e. the separation between these two ministries. This separation has now been done beneficially. Even the reaction of society in general was the police and prison minister should not also be the court minister. With satisfaction I note that this was a thing moved by this motion. [32] [27] In Jan 2012, justice and home affairs were treated separately even at an EU level. Viviane Reding was the Commissioner for Justice Citizenship and Fundamental Rights and Cecilia Malstron was Commissioner for HomeAffairs from 2010 to 2014. Today Vera Jourova is the Commissioner for Justice, Consumer and Gender Equality and Dimitris Avramopoulos for Migration and the Interior. [30] Today in this legislature, the sectors are separate with Interior and national Security Minister Carmelo Abela and Minister for Justice, Culture and Local Government Hon Owen Bonnici. At the start of this legislature Hon Manuel Mallia was Home and Social Security Affairs Minister, and Hon Owen Bonnici, Parliamentary Secretary for Justice. On this, Franco Debono was asked to comment by the newspaper malta Today. Jurgen Balzan: ‘ Justice falls back under home affairs, Franco Debono says ‘it’s ok’. Malta Today 13 March 2013, ‘At least two separate persons are responsible for justice and home affairs.’ It’s an improvement over the situation under Carmelo Mifsud Bonnici. Justice doesn’t necessarily merit a ministry unless you add other responsibilities to that portfolio. It’s not that vast. In reality my criticism of Mifsud Bonnici was vindicated when he was not elected, and if he scrapes through into the House, it will be due to the law on proportionality.’ [31] Calls for urgent reform in justice and home affairs.’ Maltarightnow.com 22 Dec 2011, ‘Nationalist Deputy Franco Debono warns that if Justice and Interior Ministry do not split in two by the end of the year, he will not support government….Debono insists that the PM had promised him that the justice and interior ministry would separate, while insisting that important reforms were necessary in the sector. He added that he expects others to keep their word, especially in such delicate and sensitive matters.’ Karl Stagno Navarra, ‘Franco Debono says media should seek answers from PM’, Malta Today 29 Dec 2011, ‘Debono reiterated the alleged promise by the PM to split the ministry before the end of the year. If we agreed about it, then so be it.’ Franco Debono warns he will not back government unless ministry is split immediately.’ Times of Malta.com, 21 Nov 2011 ‘I have told the PM that I will not support government and he can call an election, unless he splits up the ministry by the end of the year, as he told me and declared he would do,’ Dr Debono told timesofmalta.com‘He asked me for more time but I insisted that he promised and there are urgent reforms to carry out in the justice sector. There is only about one year left to the election and every day is a day lost. Therefore unless the ministry is split now, there will not be any time, Dr Debono said.[32] John Busuttil, ‘ Absent from parliament but present in reforms – Exclusive interview with Franco Debono’, Illum 9 June 2015, ‘He told me that he never agreed that justice and home affairs shuld be under one sector and explained that this was one of the biggest problems in the sector. He explained

Mr President, I like haiku [33] which is the shortest poem, where in short, you may send a deep strong message. Some years ago I wrote a haiku on justice and sent it to a person I respect a lot, Lino Spiteri, as I communicate with him even about literature as he is a writer. The haiku said: ‘-justice- tension in the strings balancing the scales’[34]

These three line, those 17 syllables or less, transmit a deep, far reaching thought. I did think that on matters of justice and home affairs, Lino Spiteri would have words of criticism which I respect. I have every respect for the person, and obviously Lino Spiteri has every right to criticise. But if I had to gather the words I shall say today, I think that in that haiku everything fits and explains the situation: ‘justice – tension in the strings balancing the scales’. In an article I wrote to the Sunday Times of 11 Sep 2011 I had said the same thing, but in a longer form. I said that in the justice domain:

‘Equilibrium is achieved by the interplay, checks and balances between all stakeholders involved, lubricated fundamental human rights – from arrest, investigation and arraignment to serving of punishment, the system involves police officers, lawyers, defending victims and accused, court marshalls, judges, court recorders, probation officers and prison wardens.’ [35]

What’s the meaning of tension in the strings balancing the scales’, obviously with reference to the woman holding the balance and sword and is blindfolded? It means that if in the judicial system, you strengthen a lot the rights of the accused and not of the Police, tension will pull to one side but not to the other and so one must have a balanced system, but I will make the opposite argument. that even with the introduction of the right of lawyer present for arrested persons, which he too pushed forward, he feels that that these were the two major changes these last years. Today this separation between ministries forms part of our system, after Joseph Muscat split the same ministries some months after the election.’ [33] [32] John Busuttil, ‘ Absent from parliament but present and relevant in reforms – Exclusive interview with Franco Debono’, Illum 9 June 2015, ‘Before we starte an interview based on politics, justice and constitutional reform, he gave me a book he had published in 2012, a small book titled: ‘Blossoms’ – A haiku collection containing about one hundred haiku and a philosophical essay with an introduction by Fr Peter Serracino Inglott. Haiku is in fact a Japanese poem based on three phrases not exceeding 17 words [5-7-5]. They are sort of deep thoughts on existence and here appears the philosophical mind of Franco which I must admit that, when he starts talking about justice and laws never stops, and if I had to write all he told me and emailed me, I would have filled ILLUM till the end of the year. Here Franco spoke again on the small book on haiku telling me that those 5 hours of speeches in parliament where he explained in detail that justice reforms could be squeezed in a poem of 8 words written by him and which he mentioned in his introduction in parliament showing that to reach a balance in justice you must measure tension in the scales of the balance-justice-tension in the strings- balancing the scales.’

[34] Franco Debono, almond Blosoms A haiku Collection. Pg 25 no. 66. [35] Franco Debono. ‘Vision for justice,’ Times of Malta, 11Sept 2011. See Appendix A.

22 The right of the lawyer during the interrogation of the suspected persons [6]

We had a situation where, as we did not strengthen the police we slowed down[37] in giving the rights to the suspect [38], which is a double imbalance and wrong. The Police Corps had to be given essential resources, but the right to a lawyer – which I shall mention as we are still not in conformity with the European Court, among which of Brusco [39] – should have been strengthened and so that balance should not be imposed, but

[36] The right to legal aid during the arrest under certain conditions started being applied in the Laws of malta on 10 Feb 2010, though the relevant articles of the Criminal Code Cap 9 of the Laws of Malta i.e. articles 355AU and 355 AT had been introduced in 2002. Debono embarked on a big campaign in favour of this right both in Parliament and the media, and resulting in his pressure finally this pressure became effective to create a balance with other countries. In Debono’s interview with a newspaper and television, we may draw an excerpt related to this work in favour of the introduction of this right.

Saviour balzan. ‘Still defiant Franco Debono, Malta Today 12 Jan 2012. ‘I am proud that this right came about as a result of my initiative…from the backbench. And let’s not forget that this is supposed to be the responsibility of other people,’ he adds in a clear reference to Home Affairs Minister Carm Mifsud Bonnici’. But I didn’t just bring it up with the internal structures of the party. This was a law that had been approved in parliament seven years earlier. I used to talk about in court before I was elected, because I was surprised at the total elimination of the lawyer from the entire interrogation process. But magistrates used to tell me that they could only apply the law as they found it…’Debono set to work immediately upon election to parliament in 2008. ‘Did anyone take notice? No. In March 2009 I issued a press release urging government to implement the law. I even initiated constitutional court cases. As a lawyer I could have stopped there, but as a parliamentarian I wanted to do my job property. So in December 2009 I felt the need to send a message: not only about this situation but also about other things, like the fact that backbenchers felt excluded, that parliament needed more resources, etc. ‘Franco Debono sent this message by abstaining on a parliamentary vote, sending his government into a flurry of panic. He now admits that this is the only tactic that ever works in getting the government’s attention. Government’s reaction? ‘First they assured me that they would implement the legal amendments…but still they didn’t do it. Do you know when they finally introduced the law? When Labour tabled a motion, and they suddenly realised that we were in the state we were in…This is a snapshort of the government’s attitude. It has to be forced into taking action by the opposition…’

[37] Motion 439-Malta Parliament 25 Jan 2012. Hon Franco Debono remarked ‘The they asked me why I as a lawyer raised this matter of the right to a lawyer during interrogation. That is not the question. It is why the state dragged its feet without introducing the legislation. So why do they ask why any lawyer raised that point? That is his duty. They state had to introduce it without lawyers ending up looked at askance after they do their work! With due respect, I could as a lawyer do constitutional cases without speking but I spoke and made pressure for its introduction. Recently we reminded of the event of Pietru Pawl Busuttil. I am sorry to say that without my intervention, not voting in December 2009, more than 20 years after the event, today we would still be without access to legal aid during interrogation even unfortunately we are still not in line. Let’s not forget either that if the Pietru Pawl Busuttil event is condiered recent after 25 years, another more recent 10 year old event led to an earthquake in court greater than that of Pietru Pawl Busuttil.’

[38] In the votes of the Justice and Interior Ministry, sitting 55 Malta parliament 18 Nov 2008 Hon Debono said: ‘I also wish to mention to conclude, the right to legal aid during interrogation. When a person is a suspect – it could be you, I, anyone – he is neither a criminal nor guilty. It is time to think as in other countries to introduce the right to legal aid during interrogation. It’s already in the criminal code but it must become effective.’

[39] Brusco vs France 1466/07 ECtHR 14 Oct 2010 European court of Human rights. 23

with an interplay of institutions and stakeholders it should be agreed upon without imposition.

General Comments

Judicial System

Mr President, before dealing point by point, I wish to make some general points. We have a mixed system and some of the problems we have in the justice sector originate from the fact that in certain aspects we have the best of both worlds. Why? As we took from the continental system as well as the English one. Where the two systems blend, they do it well and we took the best of both worlds.For example, a lot of procedure in Criminal domain is English, but he substantial is continental. But you have situations where they don’t blend and this causes friction – which is my main point As we have a mixed system we must be careful to understand that where we have two systems we know where that fusion ends.

Interpretation of laws

My second general point regards the interpretation of laws. As a lawyer you defend your client by looking at the law interpretation which you interpret. After years in court, I sometimes have a doubt: Am I interpreting the intention or the clumsiness of the legislator? Which means that the disposition of the law is such that the legislator meant it that way or there was a mistake, as the legislator maybe did not use sufficient attention. So was it a case of inattention or clumsiness. So I use ‘inattention’ not to use ‘clumsiness’. Sometimes you come across situations where you believe to be interpreting the legislator’s intention but that was not his intention due an inattention, resulting in a gap. Indeed an amendment sometimes remedies the situation. So when this happens, we have to look into it for example article 574 and 575 of the Criminal Code concern bail. [40]

Motivation, Values and faith behind the motion# The third general point I wish to make regards all points in my motion, all conforming to my beliefs, principles and values of the Partit Nazzjonalista [41] which let’s remember won the election in the eighties[40]Criminal Code, Cap 9 of Malta laws.

[41] Adjournment of Hon Franco Debono – Extact of Sitting no 474-Malta parliament 16 may 2012 Hon Debono underlined the points all conforming to the belief, the principles and values of the Partit nazzjonalista.

‘Mr president, I conclude saying all my points are in line with the political credo of the PN and in its name I was elected to Parliament. I am a very convince Nationalist and fully believe in the principles, credo and principles of this Party. I defy anyone indicating to me one point

Based on the call for ‘justice and freedom’, apart from work. Some of my points were actually mentioned in various PN electoral programs, and this was in line with the party’s electoral program related to its beliefs [42] Another point is that if these points and other proposals, including those which surely other party speakers mentioned and were not implemented, this means that even the party must re-discover its strong beliefs in justice, freedom and the fundamental human rights. Another of my points is re the mention of the role of deputy and lawyer involving some kind of conflict. I think we are not close to have a minister of justice who is a doctor or architect. Which obviously means that legal matters will be made by those involved as experts in legal and justice matters. So we had a tradition that jstice and home mintries came from the legal profession. For example in the role of lawyer one can see how both roles are joined, so I, as lawyer refer to the Constitution regarding legal aid. But I did not stop there; I cam here to push forward the implementation of this right. So there is no conflict, no contradiction between the two roles.

Volumes were written, but I will mention a person that is synonymous with the sectors of justice and interior, possibly he is the architect, as a lwyer and politician, of our modern judicial system, Profs Guido De Marco. [43] I wish to make an observation, I cannot make a speech about justice and home affairs without thanking prof Guido De marco for his great contribution in these sectors

of reforms I raised not being in line with the credo of the political party in whose beliefs I fully concur. Unfortunately this party needs to do a examination of conscience. We had an admission of mistakes and perhaps an admission that the party moved away from its beliefs. How can it go back to its road? By implementing these reforms. Its in vain making declarations. If the party always believed in the strengthening of democracy it mus thus effect the strengthening of democracy. In this way the party will re-discover its soul which has always stimulated it. So it is important that we do these reforms. And thus I could not understand how we say we made mistakes but then we say: let’s examine our houses! It’s not logical. If mistakes were made as we made no reforms, so we must make the reforms!’

[42] Private members Motion no. 280 – Motion of Hon Michael Falzon and Hon Jose’ Herrera on reforms in justice nd home affairs [lack of trust in Justice Minister Hon Carm Mifsud Bonnici], parliamentary Sitting 483- Malta Parliament 29 may 2012 –Hon Franco Debono emphasised that his proposals all conform to the credo of the party. ‘Thus I as a nationalist, believing what Dr Edward Fenech Adami said on fundamental right, appreciate as the Schuman Medal he obtained for the good he did in this country. This is why we are a nationalist party. Leaders come and go but the principles of the party remain. I did not make any proposal that disagrees with the party credo! And I defy anyone to find one that does not conform to the political credo of the party.’ [43] Adjournment of Hon Franco Debono-Extract from Sitting 186-Malta parliament-27 Jan 2010 where Dr Debono appreciated President Emeritus Prof Guido De Marco.

‘Among others I mention the presidency which was a great success, that of prof Guido De Marco, without reducing the merit of the other presidents who obviously contributed greatly to the development of the Maltese State. I mention Prof Guido De Marco as he also was my university lecturer as a law student.’. In an adjournment of Hon Franco Debono, extract from sitting 388-malta parliament 4 Oct 2011 Hon Debono referred to Prof Demarco ‘…there was Dr De Marco, whom I consider as the architect of our modern justice system.’ 25

I notice – and will be writing an article on it – that Prof Demarco did not only speak to you when opening his mouth, but also with his silence between word. He was rich in experience, in stature, that the pauses between his words were communicative in messages and thoughts as a result of experience and stature. Guido Demarco had also defended Pietru Pawl Busuttil[44] in one of the ugly events of our country in the eighties, leading to his being declared innocent by our courts and making Pietru pawl Busuttil a monument of our freedom.

In my speech I will express a general point proving the dedication of persons working in court: judiciary, officials, lawyers, prison warders police and AG office officials. They work happily and the system can be improved to help them produce better work. The system must change, allowing the good work of these persons to produce better results. I thank all justice and interior persons: police, judiciary, prison warders and my lawyer colleagues. These help you learn a lot after you start your career in court. Twelve years ago, as I started courtwork developing my style, I also observed my valid colleagues.

Statistics

I wish to make another point re statistics[46] There was a time of obsession with statistics. One cannot do a correct analysis of

[44] ‘Franco Debono will not attend PN executive meeting-PM should advise president to dissolve parliament’. Times of Malta 9 Jan 2012.

‘As Pietru Pawl Busuttil [one of the persons behind the petition], Mr Busuttil should have circulated a petition calling for the resignation allowing legal access to arrested persons during interrogation.’ Dr Debono said. [45] Adjournment of Hon Franco Debono Extract from sitting no. 456-Malta Parliament-13 March 2012. Hon Franco Debono with reference to Pietru Pawl Busuttil said:

‘Let’s not forget that there were local council elections in many of my district localities. Four years ago I convinced people to vote PN which is my party and I believe in its credo; we now know what happened. Mr President I also feel sorry for Pietru Pawl Busuttil even if his actions hurt me and maybe he realised but I feel sorry as I know he loves Hal Safi and I know he worked for this locality. And publicly I declare I feel sorry for him. I always say he is a shield of our freedoms as he suffered in the eighties as everyone knows. What he did hurt me, but still I feel sorry for him and for what unfortunately happened.’

]46] Adjournment of Hon Franco Debono-Extract from Sitting 29-Malta parliament 7 July 2008 where Debono expressed scepticism on statistics.

‘

the situation in these sectors resting only on statistics as you may be greatly mistaken [48] but you must know what is happening keeping on the ground with people directly involved in operating these sectors. I recently had the opportunity to mention how statistics can mislead, where there are decided cases as a case may be complicated. So there may be a judge who statistically has decided ten cases and another 50 cases, but in reality the ten cases may be complicated with various volumes while the others may be admissions or easy cases. So one must not judge statistics in a superficial way as not only you will not be saying the truth, but you are actually misleading. [49] to decide. One must here be careful as it does not mean that one is doing his work better than the other, but maybe one is dealing in greater detail.’ ‘You may have a judge whose way of writing sentences is shorter, but you may also have onewhose style enters great detail and quotes jurisprudence. There is no superiority between these styles, and perhaps their difference is reflected in statistics and figure. Where it concerns desamina fundamental measurement must not be figures and statistics though these have a certain relevance. [47] Chamber chosen Commttee [Re-codification and Consolidation of Laws] – Malta Parliament- Eleventh Parliament-Meeting of 28 May 2012 –Hon Debono said on statistics:

‘Dr Sciriha, I don’t know if you agree with me on this. Even magistrate’s work assessment. I.e. sometimes you can decide twenty cases. I think that most magistrates do a lot of work, very assiduous completing a lot of work. We are sometimes obsessed by statistics. You may have a judicant deciding 20 cases mostly admissions and statistics show he decided 20 cases.; you may have another one with 5 but with processes of 7 volumes and you cannot compare; thus statistics may deceive. So this superficial reading is very trickly as it states that one worked a lot and not another.. Often this is not true as the one apparently working less has worked more. When there are many admissions the parties have agreed, admitted or agreed on a suspended sentence or probation leading to a decision in five minutes. You need to see the work,; also this thing of working and less working magistrates…many magistrates work a lot. There are exceptions.’

‘With reference to judicants working or not, I like to mention as a typical example magistrate Saviour Demicoli and Judge Gino Camilleri who in spite of serious health problems, did their work, came to work. This means that it’s good to mention exceptions of those who do not work, but many work in spite of health problems. And even on arising interesting debate on justice – and I believe we agree on this. You cannot analyse a problem without seeing it correctly. If analysis is dubious, you cannlt understand a problem. Regarding statistics, it is the same and I raise an interesting point arising from Dr Sciriha’s opinion.’

[48] Chamber Selected Commite [Re-codification and Consolidation of Laws]-Malta Parliament- Eleventh Parliament-meeting 33 of 28 May 2012-Hon Debono’s comments regarding statistics:- Dr Frendo I agree perfectly with you. You went a step further with your interesting point; you built on the argument we were discussing; to know what’s happening in there you cannot be cut off from there to know what’s happening. If one bases oneself on statistics, one may be misled and actually deceived.’[49] Private members’ Motion No. 280-Motion of Hon Michael Falzon and hon Jose’ Herrera on Justice and home Affairs Reform[lack of confidence in Justice Minister Hon Carm Mifsud Bonnici]-Sitting 483-Malta Parliament 29 may 2012, Hon Debono remarked re statistics:’ Lawyer Ramona Frendo was present in the Committee and made an exceptional observation on statistics. The Minister is obsessed by statistics! In the small claims tribunal we ended up appearing before lawyer colleague rather than judicants! Also the system of arbitrage and mediation has its good points, but must be checked and reviewed. I continue on statistics. How many cases did they decide. One decided 100 and the other one

Mr President, many times I said in parliament that I disagreed with the attitude.[50]. Let’s be clear, it’s one thing to have minor reservations on a sector, having cosmetic changes, but it’s another thing to feel the duty to implement these very important reforms, including some my colleagues will mention as one must not omit to mention them. And if I may extract in a general way too, why I did not agree with the attitude, not just with small points, but the general attitude, I mention the total lack towards these sectors, I mention the lack of action or procrastination and foot dragging [51] directly negatively related to the rights of persons [52], including their freedom, as I said, the proscrastination, convenient legislation and action with ahlf- hearted interventions leading nowhere or almost, though they may be small steps in the right direction, and I give examples:

Decided 15. But you know why? One had 100 admissions he decided in two seconds and the other had 15 with six volumes per process. This is not right. Statistics must be read between the line. As Dr Frendo said, one knows what’s happening in court not by statistics but by keeping in contact. Even to know what’s happening in prison you must keep contact. These are all very relevant observations.’

[50] Christian Peregrin, ‘Debono dismisses Gonzi’s solution – I will not support reforms ‘by Carm mifsud Bonnici, ‘ The Times of malta, 9 january 2012. ‘I have been telling Dr Gonzi since July that I will not support reforms in justice of home affairs by Carm Mifsud Bonnici as I feel he has the wrong attitude.’

‘Franco Debono disappointed by minister’s attitude ahead of criminal law amendments,’ Times of malta 29 Nov 2011. Nat MP Franco Debono said today that he was disappointed by the attitude of Home Affairs minister Carm mifsud Bonnici regarding the extensive bill to amend the criminal code, announced yesterday. ‘The first time I learnt about this bill was through theTimes of Malta.com. The issue was not even discussed in the PN parliamentary group.’ Dr Debono, practising lawyer in the criminal court said. Dr Debono said the issue at this stage was not over whether or not he would vote in favour of the bill. Nor was this a personal issue with the minister, But, he said, the bill was a hotch potch.’

[51] ‘Franco Debono criticises delay in n-confidence deabate – PN, PL react.’ Times of Malta 16 Jan 2012 ‘Franco Debono this evening strongly criticised the decision taken by the leader of the house Carm Mifsud Bonnici for the parliamentary debate on the no-confidence motion to start today week,’ What happened today showed how some people’s only concern is to cling to power and procrastinate at all costs as they enjoy a comfortable position,’ Dr Debono said, ‘Thes antics, these puerile antics clearly show that the concern of certain people is not is not the national interest and the removal of instability but to cling to power. Those who have been dragging their feet are stamping them as well. ‘Procrastination has been the order of the day, in, for example justice and home affairs and other areas. Not all the people can afford the comfort and luxury of such procrastination. The people’s interest is to remove instability, and this stand does not help.’

[52] Jurgen balzan. ‘Franco Debono lays out his vision for justice reform.’ Malta Today 12 June 2112. ‘He explained that the procrastination in introducing laws such as the legal assistance and parole ‘had a direct bearing on the rights of individual citizens.’

[53] Saviour Balzan, ‘Still defiant Franco Debono’, Malta Today 16 Jan 2012. ‘He argues that the government’s procrastination on essential reforms – coupled with blatant nepotism and the existence of a clique which is holding the PM hostage, and is hell-bent on retaining the status quo for its own benefit – has left him with no option but to take the stands he has taken in the interests of preserving a democracy that is under threat.’

Right To Lawyer During Interrogation The right to a lawyer during interrogation rose to the top of the national and forensic parliamentary agenda [56] in our courts and, in spite of all this, we are still not in line with decisions of the Court of Strasbourg, and a half-measure right was introduced. [57] I made a big campaign[58] for the introduction of that legal aid assistance before the

[54] Votes of the Justice and Interior Ministry-Sitting 273-Malta Parliament-4 Nov 2010 the Hon Debono said: Mr President I wasn’t going to speak about this right to a lawyer, but as it was mentioned by the other side, I wish to talk about it. The law had been done a long time before, but obviously one may feel that it does not have to be introduced at a particular moment, but then everyone agreed at a certain point in time that it had to be implemented. I was recently defence lawyer of a small case when for the first time in Malta, it was decided that the lack of a lawyer’s presence breached a fundamental right. Last week I had my own case. ‘The Police vs Alvin Privitera where the court decided that both were sentences under appeal, one appealed by the Attorney General and the other within the appeal time still. But with satisfaction I say that this right was in function on 10 Feb this year – and is being enjoyed by all citizens. I want to make the following point. Before speaking in parliament, I placed on the Chamber’s table constitutional references as I believed that the time had come. Are today’s rights enough? This one is still being operated and we still have to see. I also spoke to the papers and other local media saying that we must be vigilant to see calmly, now that an important step has been made, how to improve it and increase it.’

[55] Parliamentary Question 32420 Malta Parliament Hon Franco Debono asked Interior Minister and parliamentary Affairs how many arrested persons by the CID asked to consult with a lawyer since Feb 2010 till now, and how many persons were eventually taken to court. – 28/2/2012. Hon Carm Mifsud Bonnici said that from Feb 2010 till Feb of this year 1335 person availed themselves of the right to legal advice before police interrogation by the Police as per Art 355 AT of the Criminal Code. No information as to how many of these persons were arraigned in court is kept statistically and thus it will be given in another sitting. Sitting no. 453-5/3/2012.

[56] Chamber Select Committee [Re-codification and Consolidation of Laws] – Malta parliament-eleventh parliament presided by Hon Franco Debono dedicated 2 meetings to discuss this right-Meeting 18 of 15 June 2011 and meeting 19 of 28 June 2011 had on their agenda the Enforcement of this right to legal Aid to Arrested Persons. Hon Franco Debono says on this right: As also Dr Zammit said, I think we agree that we made improvements as well as said Dr Caruana Curran, we advanced one step, but we also agree there needs fine tuning, strengthening and I believe that ultimately we are there.’

[57] ‘Courts still ‘ignoring’ ECHR ruling on right to lawyer during interrogation’. The Malta Independent 23 june 2014.’Inspite of a raft of rulings from the ECHR, the Maltese courts are virtually still ignoring the Strasbourg rulings on suspects’ right to consult with a lawyer before police interrogation. Criminal law experts talking to this newspaper content that, as matters stand, with the Maltese courts by and large not adhering to multiple Strasbourg rulings on this aspect of the fundamental human right to a fair trial, matters are confused with criminal defence lawyers not knowing whether the courts will abide by ECHR’s ruling or whether they will continue to supply their own criteria to cases. The problem at hand is with police statements taken from suspects before the law relating to the right to legal assistance before the police interrogation was introduced in 2010. Before then, Malta was the only country in Europe that denied suspects under arrest the right to a lawyer before interrogation. Statements given to the police that now feature in criminal cases pre-dating the introduction of the right are now being challenged by the Constitutional Court, where defendants are requesting that statements given to police without prior legal advice be struck from proceedings.’

[58] Adjournments of Hon Franco Debono-Extract from Sitting no. 23-malta Parliament 25 June 2008 where Hon Franco Debono from first year of election to parliament made an assiduous campaign in favour of this right and he spoke amply on this right:- ‘In this adjournment I wish to speak about a disposition that in spite of being in our law, has not been implemented and I strongly believe that the time has come for placing it squarely in vigore. Here I refer to the disposition where a person suspected of a crime and is being

Interrogated and not during the interrogation, a right that has passed through this parliament six years before I was elected, [59]. So I thought I had

[30] investigated by the police would have the right to a lawyer’s assistance. As the position stands today, a person arrested by the police has no right to consult a lawyer during interrogation. That’s today’s legal position, Mr President. Now in the criminal code there is a disposition that emends this situation; however it has not become in vigore, that the relative legal advice has not been done. Mr President, I appeal to all responsible to prepare what’s necessary for the legal advice so, in this case too, our country is in line with other advanced democratic countries, where a suspect interrogated by the police may seek advice from a lawyer of his choice. I believe that the prosecution and all investigation authorities, as well as the trusted lawyer, have a fundamental role to play and I believe that this disposition would be of assistance to the police. We have today a Police Corps that brings pride to the country and is respected by the Maltese and Gozitans. Thus, if this disposition were to become in vigore, this would guarantee more justice administration and assistance to the police.’ It is interesting to notice that Dr Debono, apart from having in mind the justice administration, thinks also about the needs of the police during interrogation. ‘I am saying this, as in the interrogation room between the police and the suspect, is shrouded in some mystery. Now if the doors are opened as per this disposition, serenity and guarantees to the citizen increase; the citizen is considered innocent till the end of procedures, let alone during the early stages of interrogation when the police have few indications. Thus it is necessary the necessary safeguards that we have modernised and developed during the course of complete proceedings. In my humble opinion the criminal process is intended for the person to be considered innocent and having a decent hearing.

It is thus important that these safeguards and guarantees do not start when the person is arraigned in court, but exist also, and I refer particularly to this disposition, even before the person is arraigned in court during investigation. Mr President, the time has come to seriously think about this, and about special rooms for lawyers and suspects to meet, and these dispositions can become a reality.’

Adjournment of Hon Franco Debono – Extract fro Session No 105-Malta Parliament 28 April 2008, when Hon Franco Debono said: Mr Speaker, I had the opportunity to speak on this point of the statement and the right of access to a lawyer during interrogation of a case in court of which I am defence lawyer. In this parliament I had also raised this point of the right to a lawyer, which is already in law as parliament had passed this legislation more than four years ago. At that time, in parliament, I appealed for this legislation to be implemented and rendered effective. I will not enter the merit of the case, but I am referring all this as I have heard comments that are misleading, making no sense. Firstly this right exists internationally with no need to mention Hollywood and elsewhere! Let us respect the people. Actually a police inspector who is dedicated does not really need a statement. I worry when, with a bit more attention they could have been avoided.’

[59] Votes of the Justice and Home Ministry- 162 sitting Malta Parliament-19November 2009-Hon Franco Debono expressed worry on how this fundamental right was introduced

‘…..it is also important in our country, unfortunately, where a right declared fundamental by the European Court is still slow and materialising by legal notice. I say legal notice as the law passed in parliament eight years ago. I refer to a person’s right to a lawyer during interrogation. I have been in parliament for a year and a half and mentioned this eight times. I have ended up with a sore throat repeating. Mr President, I was mentioning the right to a lawyer. A capable inspector investigating in detail has no need for this statement. Some say that the presence of a lawyer will reduce the efficiency of the work. Firstly a suspect is not obliged to talk and they know this without being told by a lawyer. With due respect, let’s not give wrong populist impressions full of sensationalism containing nothing.’

Motion 439-Malta Parliament-25 January 2012-Hon Debono emphasised that ‘Here, the backbencher

30 to campaign [60] for the introduction of the right as it is and I had insisted that the right as it is not enough, [61] but had to be strengthened. [62] it means that, aftersix six years of inaction [63] we introduced it but we are still dragging our feet [64] to conform

is not talking about small things as if saying: fix the window or paint the door! But this is a case where the whole house is tumbling.’ Effectively even with just repairs, matters will not be done. It suffices to note how I drained my energy on the right to a lawyer, which is not something I invented, as it had already passed through parliament 7 years before.

[60] Adjournment of Hon Franco Debono-Extract from Sitting No. 450-Malta Parliament 2012 – Hon Debono made an intensive campaign to introduce this right as the rest of countries and his perseverance produced a result- ‘I tried to bring in the right to legal aid to arrested persons and I managed.’ [61] Adjournments of Hon Franco Debono-Extract from Sitting no. 474 Malta Parliament 16 May 2012, Hon Franco Debono states:’…even if we were the last country in the EU with the right to a lawyer during interrogation. These are among things we should have done! I wish to live in a country where a person suspected of crime has a right to a lawyer during interrogation and not the charity of an hour before. I wish to strengthe the rights of both police and suspects.’

[62] Franco Debono: Press release: as part of an assiduous campaign of his in favour of introduction of the right to legal aid, said in point 2. ‘It’s incredible how a pertinent legislation passing through parliament, and actually in the Criminal Code [art. 355 AT [1]-[9]] more than 6 years ago never materialised. A precise examination is needed of the provisions, even considering the passage of time as to how one assures the presumption of innocence as protected by the Constitution and the European Convention on Human Rights. This lack in our law may seriously undermine our judicial process, and even indeed as pointed out in sentences of the European Court, including a recent one against Turkey, infringes of fundamental human rights, so with urgency I propose the introduction of this right in our country so as to remedy a serious lack in the Maltese system of criminal justice.’

[63] Private Members’ Motion No. 280-Motion of Hon Michael Falzon and Jose’ Herrera on reforms in Justice and Home Affairs [Lack of trust in the Minister of Justice and the Interior Hon Carm Mifsud Bonnici, Malta Parliament sitting 484 29 May 2012, Hon Franco Debono had said ‘Mr President, I will come to the heart of my speech. First I have a statement of the Minister to which I did lots of reference in The Times of 20 July 2011 he said: ‘Justice Minister Carmelo Mifsud Bonnici said yesterday there was:…listen to the gravity of this’ tacit agreement between the Government and the Opposition in the last legislature not to introduce the right to a lawyer before interrogation. ‘What does this mean? He also mentioned Pietru Pawl Busuttil last Sunday! What cheek! After the predicament of Pietru Pawl Busuttil 20 years before. The best gift to have given Pietru Pawl Busuttil was the right of lawyer’s presence during interrogation. After the chasing of us by the Committee against Torture, the Government is secretly discussing the non-introduction with the Opposition. Now it’s up to the Opposition that does not have a good track record on fundmental rights, but the Partit Nazzjonalista to which I have always been proud to belong, yes. And I did not have my father….Hal Ghaxaq 80% are Labour, but I am as much Nationalist as anyone here. So, as I said, he was secretly discussing with them not to introduce it. But let me now tell him what Fenech Adami had said on fundamental rights. I consider it the best speech made here. He had said that fundamental rights – the ones Carm is in discussion with not to introduce – belong to the human being and to every one, and coming from no government…’

[64] Private members Motion No. 280-Motion Of Hons Michael Falzon and Jose’ herra on Justice and Home Affairs reform [No confidents vote in in Justice Minister Hon Carm Mifsud Bonnici] Sitting 483 of 29 may 2012 – Hon Franco Debono insisted; ‘Today in the matter of the right to a lawyer, we are exposing ourselves, apart from the break-up. All statements are potentially wrong! Independently of remedy. All statements we took without a lawyer are all wrong! Independently of remedy! The remedy varies. Whe a statement is a sole proof, you may have an acquittal while when it’s not a sole proof, you may still have a breach. This is one of the gravest things to the party, with due respect, in difficult times, struggling for freedom and fundamental rights. I refer to the party under Fenech Adami! I know he criticised me but I still praise him!’

With the sentences of the Strasbourg Court! So this is a small step in the right direction, but a half-hearted step!

A REGISTER FOR THE PROTECTION OF MINORS A lot has been said about the register for the protection of minors, ans it’s good as a concept, and it’s a good thing to protect minors [61] but from a parliamentary question [67] of my own, it results that four months later there was no name on the register. [68] Now let’s be clear, it could be a coincidence or there may be an explanation or maybe no sentences have been done, but it could also be that this law needs amendment.

[65] In the adjournment of Hon Franco Debono – Extract fro Sitting 474 – Malta Parliament 16 May 2012, Hon Debono showed perseverance, campaigning for the right of legal aid. After the adjournment of Sitting 23 of 2008 dedicated to this right, he continued pressing on this right as it required reinforcement.

Mr President, about 4 years ago, maybe in may, I made one of my first adjournments in this Parliament speaking about the right to a lawyer, i.e. legal aid during the suspect’s interrogation. I had mentioned the separation of roles and said the magistrates enquiring with the police must not be the same judging the case.. It was the substance of my speech. I am surprised to be talking about the same thing four years later…due to the fact that the person who was supposed to effect them did not!

I regret saying that to introduce the right to a lawyer which had passed through parliament 7 years before, I had to abstain from voting. But Minister Carm Mifsud Bonnici still did nothing, and it was the participation of the Opposition which later led top this lame right! So I mention it again today. We introduced part of the British law but left parts out, and the right was insufficient, requiring amendment. At the time, I told Minister that at least we should introduce the one we have although this was not enough. Two more years have passed from the introduction of this right but we remained s before with no one examining the situation. One must add at least right of disclosure.’

[66] Bill amending various criminal laws.- Bill 45 Sitting 201 Malta Parliament 19 April 2010, Hon Debono said this bill touches criminal law and even other parts of criminal nature – which are extensive. ‘ As I said this bill touches extensive areas of Criminal law. Its bulk concern the protection of children and the exploitation of people whose age is vulnerable. I think that these provisions amending Criminal Law with the introduction of new articles are the heart of this bill.’

[67] Parliamentary Question 35047 Malta Parliament Hon Franco Debono asking Minister of Justice: ‘ Public Consultation and Family how many persons are registered for Protection of Minors and for which crimes. 25.5.2012 Hon Chris Said said that till the weekend 25 May no person was registered in the Register, reminding that only the Court may order this registration. Sitting no. 484 30 5 2012. [68] ‘No one on child offenders so far, Justice Minister Said tol Hon Franco Debono in reply to PQ, pointing out that the courts must order, after conviction, this registration.

Parole[69] Regarding Parole, [70] , when, after the last legislature, 2 deputies almost presented a private motion on parole [71] – Hon Jose’ Herrera[72] is now in parliament as well as Hon Jason Azzopardi [73] who almost presented a private members’ motion on parole as probably we are the only country without the institution of parole[74] almost 5 years passed since the presentation of the bill[75] which took months and years till the blessed day of today

[69]Select Committee of the Chamber [Re-Codification and Consolidation of Laws] – Malta Parliament-11th Parliament – Meeting of 28 May 2012 presided by Hon Franco Debono; the discussion dealt holistically with the institution of Parole with Mr Natalino Attard – Director of Probation and Parole contributing. [70] Speech in reply to the Malta president-Firs Speech-Sitting 2-Malta Parliament 15 May 2008 – Hon Debono since always in parliament spoke on the concept of Parole. ‘But it is in the interest of society that as much as possible, the reform of the person has a great importance so that the cooperating sincere person rejoins society after each case is examined. Thus the time has arrived to implement the electoral promise regarding parole, after the positive experience of service in the community.’

[71] David Darmanin ‘Criminality students lobby for the introduction of parole’, Malta Today 30 march 2008, The Criminology Students’ Association [GhSK], this week launched an online petition to register support for the introduction of the parole system in Malta in a matter of days, by email, the petition already features over 100 signatures. When the issue first appeared in the media, end of last year, articles by both sides MP, namely Hon Jose Herrera and Jason Azzopardi, seemed to express a level of consensus in the idea of introducing parole in Malta.’[72] Jose Herrera ‘Reflections on Parole’, Malta Today 29 march 2009, ‘I read with interest and satisfaction The White Paper issued by the justice minister regarding reparative justice. In essence this document deals with proposals concerning introducing parole. Interestingly, Jason and I had gone so far as to dwell on the possibility of presenting a private members’ Bill in this regard. We were, however, overtaken by national events; the last general election.’

[73] Natalino Fenech:, ‘MPs to move Private Members’ bill on Parole, The Times 26 April 2007, ‘Two MPs from opposite sides of the House are working together in a bid to table a Private members’ bill to introduce Parole. Jason Azzopardi and Jose Herrera, two practising criminal lawyers, confirmed with The Times they were working together and had already drafted a document which they hoped to present to their respective parliamentary groups.’

[74] Votes of the Minister of Justice and Interior-Sitting 56 Malta Parliament 18 Nov 2008, Hon Debono said: ‘I mentioned probation Officers, social workers and we are now discussing parole. This is a positive point and I urge that we do quickly this discussion so this law can be implemented.’

[75] Bill on Reparative Justice-Bill 73-Sitting 317-Malta –Parliament-22Feb 2011. Hon Debono said: ‘Mr President, I wish to continue where previous speakers left, from both sides of the Chamber on this law. In fact they expressed detail on this law on parole and there seems to be a lot of agreement as to the introduction of this system into our law. Many measures were also mentioned intending to enphasised strongly in this law, i.e. the reparative aspect, that of doing positive things and repairing what was done wrong leading to crime. Every crime damages society, in fact a criminal act is public as the State deals with it; but there are also victims affected in a direct way. There are victims of theft, of injury and fraud. While the victim suffers directly, society suffers indirectly. And this is where a criminal act is also public and managed by the state.

The Hon Herrera mentioned balance and moderation and I agree with him. I also propose this balance and moderation, especially in the case of criminal justice which is sensitive and creates sensation, Discussion on aspects of criminal justice are publicly discussed with enthusiasm as one is dealing with the freedom of the person, where a victim has suffered aggression, theft, fraud

The structures are still not in place, as results from many of my parliamentary questions.[76] Some prisoners had the right to parole that did not materialise due to foot dragging. So directly I am showing that procrastination affect directly persons’ rights, as a person in prison says: the law is there, I will leave in six months, when the time comes for me to leave, these institutions will be in vigore and I should now qualify for parole. [77] . I qualify for parole but cannot avail myself of it! This is worrying.[78] or molestation. These things affect the person directly, so inevitably one calls for balance and moderation, in legal measures themselves, as well as in the provisions of a law being introduced as also in the public expression. Thus, a person that has been condemned to prison, after satisfying a percentage of his sentence, is eligible to appear before the parole board, so that under various conditions, and following the interventions of many involved people, as probation officers, social workers and police officers, it is determined if that person should benefit from parole. So a person may be eligible but the parole board decides to refuse and it may happen that an eligible person is in a position to be on parole.’

[76] Parliamentary question 34698-malta Parliament-Hon Franco Debono asks Interior and Parliamentary Affairs Minister, how many parole requests were made till now and what was the result. 9/5/2012-Hon Mifsud Bonnici is informed that till now 159 Parole requests had been made with some inelible ones as per law while other requests are in process. Sitting 474-16/5/2012.

Parliamentary question 34698 Malta Parliament of Hon Franco Debono asking Home Minister and parliamentary Affairs if Boards under the Act of the Reparative Justice had been all set up, who are the members and on what criteria were they chosen, and in case they have not been constituted, why?

17/05/2012 – Hon Minister replies that the Board related to Reparative Justice were being constituted. Till now, have been set up the Offender Assessment Board and the Victim-Offender Mediation Committee while their composition was announced last March in press releases 503 and 592 respectively. Respective members were chosen as per criteria stipulated in Articles related to the above-mentioned Act. Presently there is work related to the appointment of a parole Board and a Remission Board. Sitting 480-28/5/2012.

Parliamentary question 35063, Malta parliament,-Hon Franco Debono asked the Interior Minister and Parliamentary Affairs since the Act on Reparative justice has been in vigore months ago, but the administrative structures are not totally built, does the Minister think this exposes government to damages to these persons deserving parole but cannot enjoy this right? 25/5/2012-Hon Carm Mifsud Bonnici informs the questioner that as per standing orders 27[5], PQ cannot be made in this way with questioner seeking legal advice. Sitting 484030/5/2012.

[77] Private members Motion no. 280-Motion of Hon Michael Falzon and Hon Jose Herrera on reforms in Justice and Internal Affairs [lack of confidence in Justice minister hon Carm Mifsud Bonnici]-Sitting 483 malta parliament 29 may 2012 with Hon Debono commenting:

‘Introduce quickly the Act on Reparative Justice. What did he do? A big crisis in prison but till November, he had not yet introduced it. I wish to say well done to Janice Farrugia not to the Minister. Janace Farrugia is a lawyer at the Drafting Unit; she drafted the law on probation and parole in her thesis. Bhalissa il Parole u r-Remission Boards are still not constituted , as per a parliamentary question I did. So if today I am entitled to parole, I have the right to proceed against the government. We have been dragging our feet on this parole law and it’s still not in place. So those coming out of prison in 2 months’ time, will not benefit from parole! Bye bye! Why? As we have a patient Minister. Why don’t you stay yourself in prison patiently? Yes, stay in prison yourself patiently! With due respect, another big mistake. I have clients there requiring parole and he tells you it’s not in place yet! Why? In prison, there is a huge crisis with a deputy agent for three years. I did parliamentary question about this, and excuses arrived due to applications made…or not. Feet dragging galore!’

[78] Private Members’ Motion 280-Motion of Hon Michael Falzon and Hon Jose’ Herrera on Justice and Internal reforms [no confidence in the Justice Minister Hon Carm Mifsud

Whistleblower’s Act[79] Regarding the Whistleblower Act [80] it’s a good thing to have this law, but with due respect, it requires fine tuning and improvement, as it is not adequate.. I am sorry to say that I disagree with this attitude of procrastination as well as as half cooked laws. I believe that if you wish to do something, do with conviction, as you believe in it and that should be the attitude.[80]

Renewal of Legislative process I wish to make a point re the legislative process which should not be the exclusive Government initiative. In this legislature, thanks to Mr Speaker, we had the first important live video streaming[82] from this Parliament. I like hearing you making a very important speech on the occasion of Sette Giugno[7th June] where you mentioned points which are, as the Speaker knows, very dear to me and I like to talk about them, among which the law on the autonomy of parliament and the reform of

Bonnici-Sitting483-Malta Parliament 29 may 2012 where Hon Debono re-insisted about procrastination re the introduction of parole. ‘With due respect! If this is not so, there was thus a galore of feet dragging as he said he is patient. So you who deserve parole, be patient! Be patient as there is a Minister who has patience. Patience may be Macchiavellism, I wait to do things, till election time but the problem is that he came across a motion instead of an election. Whatever! [79] Act on the informer’s protection , Act No. VIII oof 2013, Chap 527 of Laws of Malta. [80] Select Committee of the House [Re-Codification and Consolidation of Laws]-Malta Parliament-11th parliament-Meeting 6 of 28 April 2010-Hon Debono-Chairman of this Parliamentary Committee, re Whistleblower Act suggests that this must be done and included in an Administrative Code. Prof Aquilina says that Dr Vanni Bruno in a previous meeting [Meeting 3 of 7 April 2010] had mentioned that this law is being drafted in would be automatically incorporated. [81] Informer Protection Act was approved by Parliament on 16 July 2013, and became in vigore on 15 Sept 2013, ‘Whistleblower Act comes into force’. The Malta Independent, Sept 16 2013. ‘The Whistleblower Act that was approved by Parliament on 16 July, just before the house rose for its summer recess, came into force on Sunday. The act will allow various forms of protection for whistleblowers who come forward to expose corrupt practices. It will be the Attorney General who will ultimately decide whether an informer will emerge scot-free, is given immunity, faces penalty or jail sentences, or is granted an identity change, after consultation with the Commissioner of Police and the Chief Justice. Dr Bonnici said the new law will result in a huge mentality change because it protects and gives incentives to informers who act in good faith. By means of the act, any employee or service provider will be able to report wrong doings in the public or private sector since both the government and large private companies are subject to the law. This can be applied retroactively. Small companies may eventually also be covered by the Act. [82] Miriam Dalli, ‘Parliament tests live video streaming, starting with Franco Debono’s Committee’ Malta Today, 7th May 2012. ‘Suggested and insisted upon by backbencher Franco Debono, parliament this afternoon started its video streaming testing during the re-codification and consolidation of law’ select committee. The committee is chaired by Dr Debono who describe the testing as ‘historic’. Dr Debono had made the first appeal for video streaming in January 2011 when the Public Accounts Committee was discussing the controversial BWSC contract in the extension of the Delimara power station – ‘Franco Debono call for live streaming when PAC resumes BWSC case’, Maltastar 11 jan. He said: ‘people have the right to follow what interests them…video live streaming enhances transparency.’ [83] Department of Information DOI, Malta, Press Release, PR 1294-7/6/12-Speech by Hon Michael Frendo, Speaker, House of Representatives. On the occasion of the ceremony of Sette Giugno-hastings Gardens-Valletta-Wednesday 8 June 2012.

Standing Orders. In that committee there was with me Hon Jose Herrera as well as my friend Hon Francis Zammit Dimech. [84]

This Parliament is the Legislative Organ, and I think that in this legislature, the most important thing was that this legislative parliamentary organ was elevated, given more dignity, becoming a healthier organ compared to what we are used to. It should not be only government to initiate legislation, but, exactly as it is a legislative organ, there must be initiatives by deputies like us as there was in the case of divorce law and other laws. It does not have to be the Government Minister to initiate legislation that’s important for this country.

I must mention the legislative process operated in the reform of Gozo Courts. [85]. Hon Justyne Caruana presented a private motion asking the Select House Committee for the Re- Codification and Consolidation of laws [86], presided by me, to do a bill and then this is presented before this parliament after the Committee makes wider consultation.. Indeed this bill is before this parliament for debate and hopefully will become law.{87] Thus I must emphasise that the legislative process is important so that

[84] House Select Committee [Re-Codification and Consolidation] of Laws]-Malta Parliament-11th Parliament-Meeting 31 May 2012 presided by Hon Chairman Dr Franco Debono who before the committee remarked: ‘I think today’s sitting has a historical value for this Parliament. It’s the first sitting on video streaming. This is something very important, historical as I believe that this is a way how Parliament, the highest institution of the country with deputies representing the people are closer to the people.’

[85] Kevin Aquilina: ‘Reform of Gozo Courts’ Times of Malta 17 Apr 2012. ‘On march 26, Franco Debono, Chairman of Parliamentary Committee on Recodification and Consolidation of Laws, laid on the table of the House a report on the judicial process in Gozo. The report was accompanied by a draft bill to amend the code of organisation and Civil Procedure, in English and maltese. The bill was the result of internal discussion among the committee members and a consultation process involving all Gozitan MPs, Justice Minister Chris Said, the AG Peter Grech, Maltese and Gozitan lawyers who practise in Gozo and myself. Dr Debono’s report to the House of Representatives is a follow-up to Motion 222 on the judicial process in Gozo presented on De 12 2011 by Labour MP Justyne Caruana and seconded by Gozo Minister Giovanna Debono.’

[86] House Select Committee [Recodification and Consolidation of Laws] – Malta Parliament – 11th Parliament – Presided by the Hon Dr Franco Debono in a meeting 22 of 7 Feb 2012 and meeting 23 of 13 Feb 2012 with a discussion on the judicial process in Gozo. In meeting 24 of 20 Feb 2012 and meeting 27 of 20 may 2012, the judicial system in Gozo was mentioned.

[[87] House Select Committee [Recodification and Consolidation of Laws] – malta parliament – 11th parliament presided by Hon Franco Debono in meeting 27 of 20 march 2012.THE CHAIRMAN_’Hon Justyne Caruana. In fact there was agreement to be referred to the Committee. We consulted with lawyers practising in Gozo with their feedback so as to have a more practical law. I passed suggestions from Dr Grazio Mercieca, some fine tunings, but important and should be included in the law. I passed them on to prof Aquilina and I can say, Minister, that it will be ready and I will submit it to Parliament. As you said, it’s a good thing and in fact was presented by Hon Justyne Caruana, debated in parliament who referred it to this Committee which consulted and we are close to present it for discussion in a plenary session.’

Parliament must be alive! As Prof Jerzy Buzek said[88] when addressing this Parliament, if the people are the heart of democracy, Parliament is the soul, or vice- versa – I don’t remember. So it’s important that the legislative process is strengthened and it’s good that there is this type of legislative process as in the Gozo Courts.

Proposals

1.While I notice great progress these last ten years in the Police Corps, I suggest the resolution of pending matters re the police union as well as payments of arrears due for police overtime, as the police corps must always be motivated and energetic:

After this general part of my speech, I wish to focus on the motion points one at a time. I start with the police corps. Where did we start? Unfortunately in the eighties the Police Corps was in a pitiful state! It then improved especially these last ten years [90] but many of its sectors need an energy injection and a change of attitude![91]. Indeed as I said at the beginning, both in human resources

[88] Press Release Dept of Information. No 0130.Address by HE Prof Jerzy Buzek, President of the European parliament, to the Maltese parliament-House of Representatives, Valletta, Monday 24 Jan 2011 – ‘If the heart of democracy is its people, its soul must be its parliament.’

[89] House Select Committee [Re-codification and Consolidation of Laws] – Malta Parliament – 11th Parliament – Presided by Hon Franco Debono, meeting 31 of 7 May 2012, the Hon Chairman had said:- ‘This parliament already presented a complete task which is Gozo Courts reform. I think that it’s not only the bill, but also the method used to arrive at this law, was very interesting regarding better methods of proposing legislation. First the government is the main engine to propose legislation. Then you have other tools, as private motions. It was due to the latter that Hon Justyne Caruana succeeded in making the House discuss the Bill. We prepared this, after consulting various lawyers. Contributing were the Hon Justice Minister, the Hon Justyne Caruana and I think also Hon Anton Refalo, Dr Grazio Mercieca, Dr Vince Galea and various persons clos to Justice in Gozo.

That Bill was the fruit of wide consultation on a particular process including an Opposition member which made the House refer to this Committee. Consulting widely again, this Committee prepared the Bill which now goes to the plenary for more discussion; it’s enriched and refined for a final version leading it to become law in Parliament.’

[99] General Estimates 2012-Votes on Justice and Internal Ministriy-Sitting 421-Malta Parliament-2 Dec 2011, Hon Debono said: ‘Mr President, I will make short points to add to what’s intended in the Bill. Firstly the Police Corps. It maked big progress these last years, so let’s keep reinforcing the Police Corps.’ [91] In July2012, a month after Onor Debono started discussing his motion, government set up a committee evaluating needs of the Police Force.-‘Committee to propose reforms to Police Force – Debono welcomes announcement’. Times of Malta, 12th July 2012. ‘The government is setting up to look into what reforms are needed in the Police Force, the PM announced today. In a reaction, MP Franco Debono welcomed the PM’s announcement. He said that reform of the police force had been one of the points in his private members motion currently

37 equipment [92] and in some sectors, in mentality and attitude. The preamble applies obviously to every point. [93]

Let me move on to the Police Union.[94] Even here, there is the half baked criterion! [95] After not acting for years we made a Bill and even Police Association from Europe wrote to the Minister to mention inaduacy. [96] After all a Policeman is a worker facing danger, his workman is difficult; so motivate him and give him rights as other workers have. So a Corps cannot be motivated if denied the right of association [97] which

being discussed in parliament. Dr Debono said he was pleased his calls for reform were being heeded.’ [92] Franco Debono’s call for more human resources and equipment in the Police Force remains important today. ‘Police Association calls for more resources in the Corps.’ Times of Malta.com 19 Sept 2015. ‘The malta Police Association called for greater allocation of manpower and resources to the Police Force. Today the association referred to the stabbing in Paceville where the aggressor resisted the police, and recently a policeman was almost run over. It expressed solidarity with the police and the victims and called for uniform court sentencing which proves to be a deterrent.’

[93] Franco Debono , ‘Vision for Justice,’ Times of malta, Sep 11, 2011. In this article, Dr Debono referred to the need for strengthening of the Police Corps: ‘Legal and administrative measures are needed to strengthen the Police Corps’; A modern force requires a cutting edge forensic unit. The DNA apparatus is unfortunately still on the way. Resolving overtime arrears and police union issues, splitting the investigative and prosecution roles, and strengthening the internal legal unit should help further inject motivation in the force which has seen considerable improvements these last years.’

[94] Private members’ Motion 280 – Motion of Hon Michael Falzon and Hon Jose Herrera on Justice and Interior Ministry Affairs [lack of confidence in Justicer Minister Carm Mifsud Bonnici] –Sitting 483 Malta parliament-29 May 2012-Hon Debono said: ‘The Minister did also a bill on the police association, many European associations contacted him and asked: what have you done? It’s not good I made a PQ on this and he did not reply.’

[95] Adjournment of Hon Franco Debono-Extract from Sitting no. 474-Malta parliament-16May 2012-HonDebono said: ‘I wish to live in a country where the police are given resources. I am not only talking about vehicles, as this is the simplest, but the police are motivated with a union. After one of the points of my motion – indeed I can make a list of 22 points in my motion on justice – someone jokingly said we need ten years to do them! Let’s start doing them. I wish to live in a country of motivated police. I salute the members of the police. I start with the Commissioner and the least officer as I know that they make wonders with their limited means.’

[96] PQ 34415 Malta parliament-Hon Franco Debono asks the Minister of Home and Parliamentary Affairs if he had received correspondence from European Police Associations criticising his proposals on the Police Association he planned. He said there was various correspondence of this type which was receiving attention. Sitting 415-215/2012. PQ 35078 Malta Parliament – Hon Franco Debono asks the Minister which European Police Association sent him criticism on his bill for plans for setting up a police association and whether the Police Corps had objected to these plans before becoming a bill. 25/5/2012 – Hon Lawrence Gonzi states being informed that, as said in the reply to PQ 34415, there was correspondence from various Police Associations in Europe regardin the right of a police union. Till now regarding the specific proposal in bill, there was feedback from the Albanian State Police Union asking for the reconsideration of the proposal. – Sitting 486-4/6/2012.

[97] Franco Debono had for long been insisting on the need of a police union since 2011 and this was created 3 years later.

finally is a right given to all police worldwide and certainly in Europe!

There are other issues of arrears for overtime mentioned as worked by the police. These need definite resolution. [98] Even if there is a bill regarding police union, it still requires full actualisation to be in effect. What has been done is a little, late and must move on.[98]

Recruits must be called while keeping the best elements.[100] In my recent parliamentary speech, [101] I mentioned Mr Pierre Calleja who sought resignation after 25 years of service

Keith Micallef, ‘GWU creates union for police force’, times of Malta 17 May 2014 ‘A new trade union for members of the police force was launched yesterday by the General workers’ Union. Inspector Sandro Camilleri, who heads the legal office of the police force, was appointed president of the Police Officers Union.’ Keith Micallef. ‘Police Association to form independent union once legislative changes come into force,’ Times of Malta 16 may 201 ‘The Malta Police Association would form a truly independent union to continue to safeguard the interests of its members once the legislative changes come into force, it said this evening. This came in the wake of the formation of a new police union affiliated to the GWU this morning. Home Affairs Minister manuel Mallia last Wed announced a bill which would grant members of the discipline corps the right to enrol in a trade union.’

[98] private Mmbers Motion 280-Motion of Hon Michael Falzon and Hon Jose Herrera on refors in Justice and Home Affairs Ministry [lack of confidence in Justice minister Hon Carm Mifsud Bonnici] Sitting 483 –malta parliament 29 may 2012, Hon Debono commented: ‘The Minister also did a bill regarding the police association, received communications from those in Europe who told him: What did you do? It’s not a good thing! I sent him a PQ! Which he did not answer and did not pay them!’

[99] Adjournment of Hon Franco Debono-Extract from sitting 388-Malta parliament 4 Oct 2011, Hon Debono remarked ‘These days the police were asking for other conditions. So it’s not desirable that we have demotivation today.’ The police corps must be motivated. They have police union issues which are long standing, and these are by-passed as also police overtime payment. We need a motivated police corps. We need a motivated judiciary. We need this as columns for a full democracy.’

[100] Dr Franco Debono’s concern that the best elements may leave is strong and Ivan Camilleri seemed to have been prophetic…’ Mass Exodus of of top police officers. Times of Malta 2 Sept 2015. ‘some of the highest and most experienced police officers have resigned like a mass exodus. The Times of Malta is informed that Deputy Commissioner Pierre Calleja resigned as well as Antoine Casha and Norbert Ciappara. Others are considering this, sources to law and order said. Senior officers like superintendents and inspectors have resigned.’

[101] Private Members Motion 280-Motion of Hons Michael Falzon and Jose Herrera on Justice and Interior reforms. [No confidence in Hon Carm Mifsud Bonnici] Sitting 483-malta parliament 29 May 2012.’ ‘I wish to mention all, including the apathy. A person as Pierre Calleja, son of ex-Commisoner Freddie Calleja, one of the best investigators in the country, is leaving the Corps. The PM should try to avoid this departure not the Minister’s! As he and his family did so much to the country. That’s what’s important – not the no. of recruits. For example applications for messengers are made, but no one wants to work in court. And don’t forget how many policemen leave…an exodus…apathy and lethargy.’

[102] PQ 34531 Malta Parliament of Hon Franco Debono asking Home and Parliamentary Affairs Minister how many members of the police left the corps these last four years

from the Corps – also my colleague Michael Falzon mentioned this as there is agreement, but a person doing a good job, studies and is interested must be kept.

Let me mention another person neil Harrison Assistant Commissioner with whom I worked on many cases, though in court of course we are adversaries. Harrison today is doing a law course [103] and hopefully the police corps will not lose another valid person. Those wish to leave, let them, but we must keep those who can contribute well. I totally trust the Commissioner of Police; he kept working while ill. I turst him. [104] But the police must have enough taser guns and forensic material; recruits etc. don’t depend on the Commissioner – who works with what’s available. So I criticised from a political point of view. [105]

as soon as they have worked for 25 years.; how many have remained after 25 years and in which grades? 14/05/2012 –The Minister says these last four years since 2009 there were 56 corps members retiring after 25 years’ service. 195 members have over 25 years’ service and have remained in the corps. These are the Commissioner,Deputy Commissioner, 5 Asst Comm., 6 Superintendents, 4 Inspectors, 23 Serg Major and 138 Constables. Sitting 476-22/5/2013.

[103] PQ 32419 Malta Parliament Hon Franco Debono about the Legal Unit in the Corps. 28/2/2012. Hon Minister the no. of corps members asking for Qualifications Allowance these last 10 years afte graduating in law, was 15 including 6 still in the Corps. Sitting 453-5/3/2012.

[104] Adjournment of Hon Franco Debono-Extract fro Sitting 461-malta parliament-27 march 2012. Dr Debono said: ‘it’s important that the Police Corps continues to be strengthened and I express full confidence in the present Commissioner who worked hard. With limited resources he improved the Corps. But honestly I think that the Corps needs more political direction. Indeed in 2003 there was this intention and those responsible must evaluate the situation in the Corps. We must do more; we improved these last 10 years but we need to do more. The Corps must remain motivated. For example, I spoke about the Police association, in my motion, and motivation must continue. After all the Corps looks after order in society. Obviously it must be balanced with the rights of the suspects and accused; if there is no balance, one side will suffer. Balance is most important!

[105] A House Select Committee [Re-Codification and Consolidation of laws] – Malta parliament-11th Parliament-Sitting 32 of 23 may 2012 where on the agenda there was the consolidation of Criminal Laws-Hon Chairman Dr Debono spoke of the importance of the Commissioner having an adequate legal set-up, in the presence of Comm John Rizzo participating in this meeting: ‘itell the Commissioner in your presence I honestly think he does wonders with limited resources. But both Commissioner and Attorney General need a legal set-up, a legal structure making their work easier. Lots of good work was done in the pas; let’s look at the future with more improvement.’

40 Mr President, while most police officers do wonders with limited resources, I also wish to mention that these last ten years some officers were guilty of drugs trafficking, one of whom in the lock up, and sixteen others guilty of possession. [106] This is worrying and for reasons of eligibility one checks for tattoos – but it’s more important to do vetting and more surveillance.

Recently I asked a question in parliament [107] on whether the police can sell their pension, as was the intension a few years ago. A formula was agreed upon but was not implemented.

I suggest again that the police can sell their pension. It’s a complicated formula where, if a policeman dies a year after finishing from the corps, his wife gets nothing from that pension if he gets a lump sum. This option is necessary to which the police agree as it does justice to people who gave so much time from their lives and even in danger. [108] In

[106] From 2 PQs 35151 and 35152 Malta Parliament of Hon Franco Debono 28/5/2012 to Interior Minister we were informed on how many policemenwere guilty of drug crimes and what their punishment was. Hon Dr Gonzi states he is informed that these last 10 years, from 2002 till today, three persons were found guilty of possession or trafficking drugs. One got 10 months imprisonment another two years and another a fine of LM800; another got 16 years in prison and Eur40,000. Also there were 11 persons found guilty of drug possession. Punishment given included a suspended sentence, fines and conditional freedom. Sitting 486-4/6/2012.

[107] PQ 33250 Malta Parliament-Hon Franco Debono asked Interior and Parliamentary Affairs Minister if there is the intention of effecting amendments contemplated in2003, in rules on police pension, namely the choice for retiring policemen of getting, instead of this pension, a pension of three fourths of the original pension plus a gratuity 12 and a half times the amount which, deducted from the original pension or another change is contemplated 21/3/2012 – Hon Mifsud Bonnici answers there is no intension of disturbing the present arrangements regarding services pension the Police benefit from. Sitting no. 460-26/3/2012.

[108] Adjornment of Hon Franco Debono-Extract from Sitting 461-Malta Parliament -27 march 2012 – Hon Debono raised the matter of police pension.

‘In one of my questions, I asked how many officers wanted to retire from the Corps. I got an answer yesterday and I asked about pension change. If we really want to strengthen the Police Corps which does excellent work in society, in keeping order while facing difficult situations and if we want to avoid the hardships of their families, pension rules need change as proposed in 2003. This by introducing choice in retiring officers instead of getting this pension, a pension of three fourths of the original pension plus a gratuity 12 and a half times the amount which, deducted from the original pension. This scheme seems complicated but if today a policeman retires from the corps and dies tomorrow, his widow gets nothing. And this is the situation today, so it’s useless saying the policemen’s families suffer with them. So I put a question in this regard and the answer was that no changes would be effected while the desire of the officers is that these changes are desired. Indeed in 2003, this intention was there and this situation in the Police Corps must be evaluated. I wish to say that not only the Commissioner but also many 41 the latest analysis, the responsibility of the Police Corps, keeping public order is one of the top in society, so they deserve better.

A National Justice Conference

Some time ago. The editorial of The Times suggested a national justice conference particularly on criminal justice. This is a good idea and I suggest that in the Police Corps is established a task force to evaluate the situation.[109] We advanced but we need a holistic picture of the situation [109]. Let’s globally look at the Corps to see what needs to be improved. My second point in this motion, the separation in the Police Corps between investigative and prosecuting functions.

Lenthy Court time, Media and Court electronic systems. Mr President one may see good inspectors spending a lot of time in court. I wish to mention lengthy court time as many times, when one speaks about the courts, it’s as if the only problem is the lengthy time. Let’s be clear as all carry a responsibility about this. Maybe a bit the judiciary, the lawyers, and also the police and no one is specifically to blame. There is also political and administrative responsibility. I praise today Judge Padovani Grima whose first sitting we attended.[110] We had two speeches even from the President of the Chamber of Advocates Reuben balzan [111] whom I salute, who listed the problems

Corps officers, investigators and prosecutors who are good. In my private motion, I referred to the fact that the roles of investigator and prosecutor must be separate so he who is investigating may do his work while the prosecutor does his in Court.’

[109] Ironically the task force proposed by lawyer Debono was set up and signed on the sme day that the Nationalist party issued a condemnation regarding lawyer Debono and two other lawyers. ‘The worst is yet to come – Franco Debono.’ The Malta Independent 14th July 2012. ‘In his remarks he said that he had no personal issues against former Minister Carm Mifsud Bonnici but ‘reality is that his performance is a complete flop.’ He backed the argument saying that during his time Home Affairs Minister, ‘people have died in suspicious circumstances in the police headquarters [referring to the case of Stephen Spiteri], prison wardens and inmates have been involved in drug trafficking, soldiers have been left to deal with illegal immigrants with no resources at hand and a task force set up to reform the police corps on the same day that I was punished.’ ‘Such a complete failure should have resulted in an immediate resignation, but Dr Mifsud Bonnici decided to do otherwise. The PM could have even relieved him of his post and assigned him another portfolio, but refused my suggestion,’ added the PN backbencher.’

[110] Malta Chamber of Advocates – Hon Madam Justice Jacqueline Padovani Grima shall be holding her first sitting at hall 22 tue 12 June, 2012 at 12 15 hrs.

[111] new Judge points to high rate of decided cases by judiciary—Call for improved security at the law courts’ The Times, 12 June 2012. ‘During his address, Reuben Balzan president of the Chamber of Advocates, also spoke about the way the media criticised the judiciary saying that some reports were aimed at sensationalism. While stressing that it was the media’s right and role to draw attention to certain issues, one had to ensure that this did not give the unjustified impression that the judiciary was all to blame. He again called on cooperation among all members of the judiciary to allocate time slots to cases.’ 42 in court, among which the administrative backup [112] without which it’s useless blaming the judicant or penalising latecomers due to a bad system!

The client, lawyer, inspector must not suffer due to a bad system, as when an inspector is not in the court hall, he may be accused of contempt. What can he do if he has six cases at 9 am? In court a sentence may not be given if someone is not present and we blame the judicant. We must holistically consider the system without all round blaming – which is a very easy thing. We lack reform in this country as we don’t look holistically at things. The role of the media was greatly emphasised in the speech of the President of the Chamber of Advocates – but I will come back to this later.

Also Judge Padovani Grima insisted on a point which I will mention now before I forget about it i.e. the issue of the PA system. [113]. I have mentioned – though not in the private motion where this was already tackled – the recording [114] of procedures in

[112] ‘New Judge points to a high rate of decided cases by the judiciary – Call for improved security at the law courts.’ Times of Malta 12 June 2012. ‘She went on to share a few thoughts on how the system could be improved. The duty magistrate of the day should be assigned a clerk to handle the work that came in, such as inquiries; there should be a study on the system in which court documents were sent from the law courts to the AG. Documents were spending too much time at the AG with an average of six weeks at the AG and four weeks at court. She pointed out the lack of resources at the AG’s office and there should be an AG lawyer in the halls with compilation of evidence. She said every judge and magistrate should have the help of a judicial assistant.’

[113] ‘New judge points to high rate of decided cases by the judiciary – Call for improved security at the law courts’. Times of Malta 12 June 2012 – ‘Even simple things, like installing a public address system at the law courts would save time between cases, she said.’

[114] Bill amending various laws regarding Criminal Matters-Bill 45-Sitting 206-Malta parliament-19 April 2010 – Hon Debono insisted onvarious speeches and for a as to the actual system of tape recording was archaic and obsolete. Eventually Hon Debono’s pressure worked. ‘Mr President, before entering detail, as we are talking of criminal justice, I wish to make a PQ, and it’s about the recording system at Court. As I mentioned previously, the justice system has evolved, though there are still many things to improve. I refer to tape recording in court. I doubt whether tapes can still be found in shops – and this is making Hon Herrera laugh. We have today CD systems and tapes are awkward for the judiciary and staff and thus the system must change. This involves financial investment, and in this day and age when we boast of top technology, this should exist in the place that safeguards persons’ rights; so the recordings system must improve.

For those who are not familiar with the courts, when we talk of recordings, we mean each taking of evidence except for minor and district matters; then the recording is transcribed and serves as recorded evidence. In the file. This applies to evidence of injured parties, victims, witnesses of events, inspectors’ and accused’ evidence. These recordings use tapes. I am informed that some halls already use a more modern system and this must now take place in all halls. I wish to make

43 in court that’s very important as all processes and cases are recorded. [115] I encourage – and this is a point I shall not include in the motion - a change in th legal advice that’s still called: Electromagnetic Recording of Proceedings’ Act. [119] That act needs change. It’s a very short act,

an observation as a more modern system is more practical for all, both for the judicant and his staff.

[115] In various speeches, Hon Debono spoke of recordings of proceedings. He insisted on this point in the Justice and Home Ministry votes. Sitting 273 Malta Parliament – 4 Nov 2010—Hon Debono explained-I refer to recordings in court again. We are discussing estimates, and this is a finance matter as it requires a financial input to do court recordings still done with tapes. I discussed this with the Minister who listened to me regarding the need to invest in a modern system. Our country has also reached a good ICT standard and some agencies cater for specific needs even tailor made for a court. This saves transcription expenses, even alloing a magistrate to re-listen evidence easily.’

[116] Motion 439-Malta Parliament-25 Jan 2012-Hon Debono said: ‘Mr President in this digital era we have a democracy using the radio; I had to make pressure and PQs leading to the elimination of tapes. Parliament uses the radio and the court uses tapes in an era of pen-drives and i-pads. These are not small details as otherwise I would not have laid such importance on them; but they are not cosmetic matters as they reflect the state of institutions. After my pressure for the elimination of tapes and the introduction of a more modern and safer method, which improves efficiency for one and all including the magistrates and judges; it also helps all citizens who may require using modern electronic means such as Electro-magnetic Recording of proceedings to promote his case. I have defended Minister Carm Mifsud Bonnici even on lawyers rights, but then his comments on The Times I did not like as he said that that right was not important and even agreed with the opposition. However, while striving to improve recording systems in court, there are unfortunately still people using the old cassette system. Eventually I had to raise a legal exception as ironically the system was changed but not the law.’

[117] PQ 16644 Malta Parliament-Hon Franco Debono-from year 2010, asked the Hon Minister of Justice and Home Affairs. ‘Can the Minister say if the cassesste system of court recordings will be replaced by a more modern system?’. ‘Hon Minister Carm Mifsud Bonnici answered: We are studying various systems used by our neighbours. These systems cost approximately Eur 130 000 for 24 halls. Sitting no. 214-4/5/2010.

{118] Adjornment of Hon Franco Debono, extract from Sitting No. 105-Malta Parliament-28 April 2009-Hon Debono spoke lengthily of cassette tapes still in use.

‘Cassette tapes were used when I was a child, but still some court structures use them in 2009. You hardly see these anywhere as today CDs are used. Today magistrates and Judges need to have modern systems of recording which improve efficiency considerably with a more modern technology. I need not been sophisticated, state of the art but at least better than the tape system.’

[110] Dr Debono even in the media insisted of the law that must change: ‘Court evidence being digitally recorded’, Times of Malta 6 July 2012. ‘Courts in both Malta and Gozo have finally

Contains 2 pages with seven sections, not so much, but we must amend it as I say that the better technical procedure with compact discs is not covered by this law. There is also foot dragging in this case, and this mentality must change. [120]

I do not mind saying that Chris Said, as Minister of Justice kindly consults me, practically daily – and this is an attitude chage. But let me come back to the Court PA system.[121] Today we have a system: ‘Called 3 times but did not answer.’ When the court was one corridor, the thrice calling was more logical. But today, if you are upstairs or in the Family Court or if a person is in the toilet, how can you say a person did not answer the call. Today this is an archaic system that must become more modern.

There are 4 lawyers in this chamber: Hons Michael Falzon, Chris Said, Jose’ Herrera and I. We all know that when the case is about to start, you are called. Later your client may say: Why didn’t you come? This especially happens when you have a full day and the client suffers while this happens to the inspector too. I do know there is a wish to create a common diary, and some magistrates use this system already. So I expect my suggestion re PA system to be implemented.[122]; I liked that it was mentioned today

… gone digital and evidence is no longer being recorded through the use of cassettes. Dr Said said that evidence now is taken digitally, following Dr Debono’s intervention. The latter said the law must reflect this development.’ [120] ‘Law Courts go digital’, The Times of malta 9 July 2012, Justice Minister Chris Said, visiting the courts agreed with this opinion and referred to Dr Debono’s suggestion who insisted that now we must act for this development. Accompanied by Parlimentry Assistant Franco Debono, Dr Said said that wireless internet was also available in every courtroom.

[121] Bill to emend the Probation Act-Bill 40-Sitting 204-Malta Parliament-23 March 2010] Hon Franco Debono spoke again about the PA system. ‘One reality every lawyer in court comes across is that of being in a hall and called in another, finding out that your case has finished. I have been mentioning repeatedly tha the PA system is a solution to all this. The court today does not consist of one corridor but of different buildings. This is the case at the Family Court; when you come out of a courtroom, your client is calling you angrily as you did not attend his session. This does not happen all the time, but unfortunately it does happen and must happen as little as possible. There must be a PA system so that the lawyer knows exactly when and where he is needed. Various lawyers have several cases and they try to keep up with all of them. All parts must cooperate: lawyers, magistrates, prosecution and defence lawyers.’

[122] Since 2009, Dr Debono has been proposing in Parliament Adjounments a P.A. System. Adjournments of Hon Franco Debono-Extract of sitting 105-Malta parliament 28 April 2009. ‘If for example you are an inspector, coming to court for one case is no problem, as you sit in a hall and wait for as long as necessary; but you may be an inspector with three, four or five cases and you have to run from one hall to the other to do your work. With all due respect, this system no longer makes any sense and is not practical. I suggest the use of a P.A. system and names are called

By Judge Padovani Grima. We can no longer rest on ‘Called three times but did not appear.’ When God knows where you are and cannot hear it! [123]

2. Separation between Investigative Functions and prosecution in the Police Corps

I come now to the functions of investigation and prosecution in the Police Corps.[124] There is a whole Babylon. Recently the President of the Republic said that whoever makes a mistake in the charge sheet must be held responsible.[125] In a lawyer’s work, a mistake must be mentioned as part of the defence. But, with all due respect, a minister may come and tell you: ‘If there is a mistake in the charge sheet, what can I do? A minister cannot be held responsible for every little thing, as there would not be one minister left. But reality shows that time ago in the Police Corps, there was a good attempt for the setting up of a strong prosecutions unit [126] but what happened? It happened that all police officers graduating from the law course left, preferred to pay a penalty and preferred to leave due to a lack of motivation. [127]

……….. On this system. In this way, a person knows he is required in a certain courtroom. I repeat with responsibility that the present system lack logic and a lawyer and an inspector know – as I discussed with colleagues – that you may be doing a case in a courtroom and you are called in another; the magistrate, as maybe there is the prosecution’s evidence, proceeds without you. In this way, you client may think you did not come to defend him, while you did not even know while in a certain hall, that you were called in another.

[123] Bill to emend various laws concerning criminal matters-Bill 45-Sitting 206-Malta Parliament 19 April 2010-Hon Debono: ‘As we are discussing criminal and court matters, - referred to by the Minister of Justice and the Interior – the time has arrived that I speak about the PA system. If a person is called from 2 or 3, by the time he goes out to have a smoke maybe or other needs, he would not know that he has been called. This applies to lawyers too. The court building is today larger, and if you are in the Family Court and you are called to the Magistrates’ Court, you may not know you are being called. This way you may end up not being present for your case – with various problems arising. The time has thus arrived for studying a PA system, but let me now concentrate of particular element of this bill.’ [124]Franco Debono, ‘Vision for Justice,’ Times of malta, 11th September 2011. ‘Resolving overtime arrears and police union issues, splitting the investigative and prosecution roles, and strengthening the internal legal unit should help further inject motivation in the force, which has seen considerable improvements in recent years.’ [125]Private Members Motion No. 280-Motion of Hon Michael Falzonand Hon Jose Herrera on Reforms in Justice and the Interior [no confidence in Justice Minister Hon Mifsud Bonnici] sitting 483- Malta Parliament 29 May 2012 Hon Debono asked: ‘Is the president of the Republic trying to be vindictive? I do not think so. The President of the Republic is doing a lot of good and is respected by all sectors of society. The President said that the charge sheet is wrong and responsibility must be assumed. Do they all want to do a bad turn to the Minister?’ [126] PQ 34409 Malta Parliament – Hon Franco Debono asked Interior and Foreign Minister about the state of the prosecution unit in the Police Corps and in what it consists. 9/5/2012. [127] Adjournments of Hon Franco Debono-Extract from Sitting 474-Malta Parliament-16 may 2012- Dr Debono insisted: ‘ Separation is needed between investigative and prosecution functions and present prosecution in juries. Inspectors must work hands on and investigate rather than waste time in court. They must be 46

So, I am suggesting a motion to propose positively, to go forward, but one must point to defects to propose improvements. I hope we do not lose Assistant Commissioner Neil Harrison who is doing a law course. What type of security is there during juries? Here, the inspector who investigates is not also prosecutor.[128] The AG takes care of juries and criminal appeals, both inferior and superior; the AG is prosecutor. Judge Padovani Grima[129] made a good suggestion today that in each court room there is an AG lawyer while the inspector investigates on the spot.[130]

But there is a bigger problem. I remember a drugs squad inspector I know who was prosecuting an arrested person at a time when there was also a bomb scare – problem that was tackled- and the inspector was wasting time in court while he has an arrested person.

other officers to do this. A Prosecutions Unit started, but I don’t know what happened to it. It sure is not in a happy situation. Many lawyers were policemen and they started a course but they left with little incentive. A separation must be made between the prosecution and investigation function in the Police Corps. Apart from purchasing vehicles which is an easy thing; these are things we should have done, changing work practices, systems, structures and mechanisms. But nothing of the sort was done by whoever had to do them.’

[128] General estimates 2012-Votes of Justice and Interior Ministry-Sitting 421-Malta Parliament-2 December 2011 where Hon Debono proposed a separation between an investigative and a prosecuting function of the Police-‘This also goes for the functions of the prosecutor. An inspector is supposed to investigate, not spend a day in court. This already happens in juries, as the prosecutor is from the office of the Attorney General. So let’s extend this to the magistrates’ court so inspectors can be in their direct place of work – as happens in other countries. The police also need more forensic facilities to do their work more efficiently regarding keeping order in today’s society. Progress has been made but not enough.

[129] ‘New Judge points to high rate of decides cases by the judiciary – Call for improved security at the law courts’, Times of Malta 12 June 2012 – ‘…ideally there should be an AG lawyer in all halls where there were compilations of evidence going on.’

[130] Votes of the Justice and Interior Ministry – Sitting 56 – Malta parliament-Hon Debono explains:- In our system, at the lower courts, before the magistrates, it is the police who carry out things, not only investigations before an arraignment, so from investigator he becomes prosecutor. I think the time has arrived for them to be assisted – and I don’t say this rhetorically – are prepared for the case; today the Police Corps is respected by the Maltese people, as my friend Dr Fenech Adami said. There should also be junior lawyers with the Attorney General’s helping in prosecution. And this for the good of the whole judicial process.

We must consider doing what’s done abroad. This is because an inspector has not done a 6-year law course, so this proposal must also be considered.’ [PQ 16822-Malta parliament; Hon Franco Debono where in 2010 regarding the court building, Hon Debono asked how many security people are at the law courts. What is the cost of this security? Will they increase? 30/4/2010-Hon Carm Mifsud Bonnici says that 10 person look after security in court: 3 full-time government employees and 7 part-time private employees. The cost for the year

Now we know that with every minute that passes, there is a risk of illegal arrest beyond 48 hours. Sometimes a person is arrested, they have to go to court and after seven, eight, ten hours they haven’t yet spoken to him.[132]

You cannot blame the inspector as he would be in contempt if he does not attend court. The inspector cannot know if the next day he will arrest someone as he won’t know if there would be a burglary the next day. So I repeat that the majority of individuals work well, are motivated, but the system is penalising them. It’s a system that needs to improve to maximise the fruit of the work of these persons. If that inspector concentrates exclusively on investigations while another person concentrates on prosecutions [133] there would be two roles done by two different people.[134]

2009 was of 106, 835.42 Euro. I ad that shortly there will be another full-time employee. Sitting 215 – 5/5/2012. [132] House Select Committee [Re-codification and Consolidation of Laws] Meeting 33 of 28 May 2012 with a Committee agenda including the Criminal Code Hon Chairman Franco Debono raised the following matter: The Chairman ‘Another thing I wished to say before ending my speech and passing the floor to Dr Sciriha who wishes to speak, regards a problem arising this morning related to the fact that an inspector with arrested persons, due to the fact that there is no separation of investigate and prosecuting roles, have to arrest a person at 8 am, comes to court thinking he would spend an hour, says that during the arrest and transfer to police HQ, thinks he can do some cases and come back,; but instead of one hour, he takes two, with the arrest being illegal as you cannot arrest a person and delay his interrogation by five or six hours; then you speak to him and realise that there is nothing. So what to do? So if he gets a call saying the person was arrested, would he come and speak to him? And end up being fined by the court? Defects must be paid by those who created them and it is bad to shift deficiencies on lawyers, inspectors, magistrates all of whom act in a defective system; not all is bad, but improvements are necessary.’ Meeting 32 of 23 may 2012 discussing Consolidation of Criminal laws, Hon Chairman Dr Debono clarified ‘my suggestion was that an inspector must investigate and the Prosecutor, as in juries, must be from the Prosecution Unit.’ [133] Bill implementing estimates measures-Bill 34-Sitting 187-Malta Parliament, 1 Feb 2010 Hon Debono explained ‘ In justice matters, I asked whether lawyers from the Attorney General’s office can prosecute in the magistrates’ court instead of the police. I think that in many jurisdictions you have an investigative officer who is not a prosecutor, thus not taking care of the case in court. This creates a specialisation, and reflection is needed on these possibilities. They need a trained human resource, needing thinking and work, and as previously, I pass on these suggestions to the Minister. The time has come to see since we have a prosecutor in the criminal court who is a lawyer, you have this in the magistrates’ court too. Thus we would be strengthening the prosecution’s position with a better legally trained prosecutor. Many inspectors today graduate as lawyers, but most inspectors don’t have a lawyer’s degree and I say this to strengthen the prosecution, by not having it done by inspectors but by other prosecutors. There is abroad a distinction between an investigating and a prosecuting officer. The investigator conducts investigation and the prosecutor looks after the case in court.’ [134] Private Members Motion 280-Motion of Hon Michael Falzon and Hon Jose’ Herrera on reforms in Justice and Interior Ministry [No confidence in Justice Minister Hon Carm Mifsud Bonnici] sitting 483-malta parliament-29 May 2012 – Hon Franco Debono explained: ‘mr President, I spoke before the labour Opposition on the separation between investigative and prosecuting functions. Apart from this, an inspector must not waste his time

3. Forensic apparata, including DNA apparatus, in the context of a strong forensic laboratory [which is almost inexistent today] which is fundamental for police work. I also think that the Police Corps is still not giving enough importance to intelligence policing.[135] The way forward is forensic and intelligence policing, not the statement. For a clever investigator, the statement is a cherry on the cake. A good investigator does not need a statement by the accused as his proof comes from the intelligence and forensic unit.[136]. From other PQs I made, it results that the intelligence unit needs a lot more investment.[137] A task force in the Police Corps is needed for the way ahead. We have made only a little progress which is less than in other countries.

in Court. These have practical ramifications. An investigating inspector must be on the street or in his office, not wasting 3 hours in court. It’s because an inspector may waste 3 hours in court, as twice per week there is also a bomb scare while he has your client arrested. When you tell him: ’Inspector please go speak to him. He answers: I have court duty and risk a fine if I leave. It is illegal to leave an arrested person for 6 hours, a broken system, with respect. That’s why there is a separation between investigation and prosecution.’

[135] Private Members Motion 280-Motion of Hons Michael Falzon and Jose Herrera on reforms in Justice and Interior Ministry. {No confidence in Hon Carm Mifsud Bonnici] Sitting 483-Malta Parliament 29 May 2012-Hon Franco Debono argued that the direction should be towards intelligence policing, no to get cars! People see that, but when you get into the heart of the problems, it’s not cars that are the heart. Police cars are a basic, as they have some bad cars. New cars were needed years ago!

[136]Adjournment of Hon Franco Debono: ‘I want to leave in a country where the police base their work not on statements but intelligence policing which is still basic in the Police Corps, though things are based on the former in Europe.’

[137] PQ 34701 Malta Parliament Hon Franco Debono asked Interior Minister and Foreign Affairs to say what the Police Intelligence Unit consists in, no. of members and grade. 17/05/2012. Hon Minister replies that at present the Criminal Intelligence and Analysis Unit has one Inspector, one Sergeant and 5 constables. Sitting 480 28/05/2012. PQ 34702 Malta Parliament Hon Franco Debono if there is an intention for the important intelligence unit to evolve and how. Hon Minister replies that the Police Criminal Intelligence and Analysis Unit is receiving all importance it deserves while more improvement is considered. Over the years there was upgrading especially by the addition of personnel.

There was also an improvement of computers. Sitting 480-28/5/2012. PQ 34703 Hon Franco Debono asked Minister re allocation of funds to the Intelligence Unit year by year during the last 5 years. 17/5/2012 Hon Minister says that funds were allocated to the whole corps not by section. Sitting 481- 28/5/2012.

The third point: Forensic apparata, including DNA apparatus[139], in the context of a strong forensic laboratory [which is almost inexistent today] which is fundamental for police work[141]. I was talking on 8November 2011 [142] – it’s fundamental for police work. [143] maybe after this motion, things have improved. Without a strong forensics, you rely on statements and abuses start. [144] Then you cannot include rights to

[138] PQ 27075 Malta Parliament Hon Franco Debono asks the Minister of Justice and the Interior in what consist the forensic facilities in the Police Corps and whether there is the intention to increase the. 21/6/2011 –Hon Mifsud Bonnici says he is informed that in the Police Forensic Dept., there are the following units: Ballistics, Photography, Fingerprints, Scene of the Crime and National Document Examination Unit. I am informed that preparations are being made for a Database management System which replaces the Automatic Fingerprints Identification System. Session373-27/6/2011. PQ 34530 Malta Parliament Hon Franco Debono asks that these last 4 years, year by year, what was the police investment in Police forensics. The Minister said that these last five years, invested in various apparata to improve the forensics unit, even from EU funds. Sitting 476-22/5/2012. [139Speech with a reply, of the Malta President-First Speech in parliament referring to the need for setting up of a Police DNA laboratory. ‘Surely the State has the right and obligation, to protect members of society by effective laws and justice system. One must thus explore the possibility of setting up of a DNA lab among other proposed measures. [140] Claudia Calleja, ‘Forensic Lab has been abandoned since 2001,’ Times of Malta 15 Sept 2013. ‘Malta’s forensic lab has been in a state of abandonment since 2001 when police scientific functions were transferred under the Malta National Laboratory, as per expert Anthony Abela Medici. ‘We need a proper forensic lab with experts…The country has to invest in a fully-fledged DNA lab for the future,’ he told The Sunday Times of Malta. [141] Votes of the Justice and Interior Ministry-Sitting 162 Malta Parliament 19 Nov 2009 Hon Debono states: ‘President, the police, to function well, must have a forensic lab which is now inexistent How else can they work? With present resources, they do miracles. We need radical urgent measures as a vision for criminal justice.. And in this background, as I said, the police need forensic tools to work. The Police Corps has made great progress and is respected by the Maltese, But let’s not say that there were bad things in the 80s and thus all is well now and we thus need not to make efforts. We urgently need criminal justice with a state of the art forensic lab, so the police have tools. I link the implementation of the right to a lawyer during interrogation with the strengthening of police resources so they keep order but also the investigation of crime, which is their primary duty.’ [142]House Select Committee [Re-Codification and Consolidation of Laws]-Malta 11th Parliament, meeting 19 of 28 June 2011 presided by Hon Debono and distinguished guests including Police Commissioner John Rizzo who spoke of tools at the disposition in police investigations. [143] Franco Debono. ‘Vision for Justice,’ Times of Malta, Sept 11 2011, ‘A modern force requires a cutting edge forensic unit. The DNA apparatus, unfortunately, is still on the way.’ [144] Adjournment of Hon Franco Debono-Extract from Sitting 105-malta Parliament-28 April 2009. ‘There are excellent inspectors, doing their job well and conduct investigations with lots of dedication, and this with limited police tools. These must be augmented so the do their work better. For example the police used statements; a dedicated Police inspector who want to work energetically hardly needs statements if he investigates cases well, having made long observations, that he hardly needs a statement.’

Suspects as if the Police Corps is left weak in its fight against criminality, in the investigation of crime, so as a reaction, you end up denying suspects their rights and, as I said at the beginning of this speech, you create a double imbalance. So there is a great tension acting on the scales I mentioned in my speech.[145]

You don’t need here a legislative intervention but an administrative investment keeping close to developments abroad, to have the best equipment, as well as training regarding forensics [146], as some people told me about their forensic expertise[146], since many crimes today are solved with fingerprints, DNA and other forensic elements.[147]. Followed this motion

[145] Hon Debono spoke in Parliament and in the media regarding the need for the Police Force to have adequate equipment to investigate and destroy criminality. In a media comment, he said: ‘Lack of access to lawyer breaches fundamental human right,’ The Malta Independent 29 May 2011- -‘The forensic lab is another aspect of the investigative set-up needing to be strengthened, Dr Debono said, adding that today, cases the world over are solved with forensics rather than relying on confessions and statements. The forensic lab needs a huge injection of equipment and manpower, as well as more training, he said: ‘We can’t continue to rely on statements,’ he explained, ‘because even in countries where the lawyer is present during statements, they do not rely on statements to solve the case. We have improved, but a lot still needs to be done.’ [146]Debono many time spoke of the various aspects of Police investigations which must be strengthened-House Adjournment-Extract from Sitting 105-Malta Parliament-28 April 2009 Hon Debono dedicated most of this Adjournment to this subject: ‘Mr Speaker, I think that in a modern state we must do our utmost to help the police do its work. Indeed it is desired that the Police Corps has all equipment at its disposal, with a well-trained staff and best apparata related to excellent development in this line of work internationally in investigation. This would safeguard the rights of the individual and the good public order. Thus I feel that the forensic aspect in police work is necessarily strengthened. My work convinces me that forensics are greatly important and the police internationally appreciate enormously this facility. For example fingerprints associate a crime to the suspect. So does DNA. I think that regarding this matter, we must give a direction to the structure and to the way the national laboratory functions today. This lab, set up even years ago has only a staf of ten persons i.e. insufficient. I am also informed that in the national lab, there is no room for exhibits. We are talking here of elements that we do well to conserve. Mr Speaker, why am I saying this? Today forensics and investigations have moved forward as compared to ten, twenty, thirty years ago. Often, foreign changes are not quickly adopted by us. During nine years I have exclusively worked in the criminal camp, I experienced criminal cases involving the police and prosecutors doing their work excellently motivated giving also their free time to this point of sacrificing their family time.. I thus thank the police Commissioner for his good work and management of the Corps.’ [147] Bill implement measures of estimates – Bill 34 – Sitting 185-Malta parliament 26 jan 2010-Hon Debono emphasised that the DNA equipment was an electoral promise and is important for police work in investigations and keeping order.

As on 8 Nov 2011, the forensic lab was almost inexistent.[148

4. Separation between investigative and judicant functions of magistrates, to set up a pool of magistrates specialising and concentrating full time on inquiries:

The fourth point. Separation between inquiring and prosecuting functions of magistrates.[149]. I fell this is close to me over my years in parliament but few people talk about it.[150] I many times spoke about it as it is one of the most worrisome and unacceptable things in our criminal justice system and I have last spoken about it in June 2008 [151] and even before as a lawyer. This should

‘Let me come to another aspect and I tie this to the budget matter as it needs the allocation of various funds. I think that the forensic lab needs a big investment. In my first speech I said this was an electoral promise; we must have DNA equipment.. This is intrinsically part of the police work in keeping law and order in our society. We are suffering the effect of what we should have done before though we often look at the past with nostalgia. However past omissions also have a certain importance and we must learn from them. For example a crime is nowadays often solved by forensic apparatus. Some people not requiring a lawyer still do not admit, thus not talking to the police with legal advice, but the police have a legal weapon at its disposition.’

[148] PQ 33251 Malta Parliament Hon Franco Debono asked the Minister of the Interior and Foreign Affairs re electoral proposal 265 promising ANA lab for the police. 21/3/2012 the Minister replied that this DNA system for the police is an advanced stage. Sitting 460-26/3/2012. [149] Adjournment Hon Franco Debono-Extract from Sitting 388-Malta Parliament-4 Oct 2011-Hon Franco Debono insists:

‘Also, in the case of the enquiring and investigating functions, even regarding their separation, a magistrate cannot first investigate with the police and then fulfil his judicial function. One cannot wear these two different hats for the two functions. I have been saying this since my parliamentary election in 2008.’

[150] Votes of Internal and Justice Ministry 56-Malta Parliament 18 November 2008- The Hon Franco Debono, even since his first year as MP, insisted on the separation of these two functions. ‘I wish to talk about the functions of enquiring and judicial magistrate – two roles which should be kept separate.’

[151] Adjournment Hon Franco Debono-Extract from Sitting 388-Malta Parliament-4 Oct 2011-Hon Franco Debono insists: ‘There must be a fundamental separation between the functions of magisterial enquiry and judicial. We have a strong judiciary effecting difficult solutions in the past and people respect, trust and have faith therein. Today the system makes a magistrate enquire, lead the enquiry, nominates experts and is in direct contact with the police; but then you have a magistrate with another hat of judicant, with guarantees of independence and impartiality by the Constitution of Malta and the European Convention. The two functions are incompatible and demanding as a person cannot wear two hats at the same time.

52 be understood in the context of prospective reform at the AG’s office. It is totally inacceptable that a magistrate is close to investigating police and then the same magistrate will put on another hat to judge the same person, in this or another case when he investigated him.[153]

During the last legislature, there was a worrying proposal making the situation worse, i.e. when a magistrate starts an investigation without the police, he needs the permission of the Chief Justice. One can compare my attitude re justice and the interior to that of others. I believe that it was a particular case into whose merits I will not go. My purpose is of common sense, of the observance of law, the rule of law, fundamental rights and the separation of powers..

Another point I wish to make is that most cases I mention are related to the separation of powers in specific issues, not only related to the separation of powers in ministerial issues. When a person asks for an investigation from a magistrate, does the latter need permission from the Chief Justice? I shall also be mentioning how magistrates are treated. Like a clerk, or like at school, asking the teacher’s permission. These are very dangerous situations and there was no law as

………………… There is a system where each magistrate is on call with a rotation system and crime reported will be under his duty to enquire and then he finishes,; he has to do a function of a judicial magistrate and as an institution of a court that is independent and impartial, he has to judge the case of the prosecution and the defence.. Apart from this, Mr President, some magistrates have a larger workload than they can carry. But in spite of this, I know from long court experience, that all judicant execute their function in an exemplary way – in spite of a large workload.’

[152] Adjournment of Hon Franco Debono-Extract from sitting 461-Malta Parliament -27 March 2012- ‘it’s the same regarding enquiries. I am hurt by the fact that magistrates doing enquiries do also judgement. We need enquiring magistrates. This arises in particular cases of magisterial enquiries. We do not have an adequate enquiry structure of a modern 2012 European country. In relation to this I asked in Parliament today if the Bastjan Borg enquiry had finished since 2007 if I am not mistaken. He was arrested by the police and I asked what happened to this enquiry.

[153]Adjournment Hon Franco Debono-Extract from sitting 29-Malta Parliament 7 July 2008-Hon Debono says: ‘The crucial point is that we cannot wait for judicants, who safeguard constitutionally independence and impartiality, end up as part of the enquiring authorities, along with the police while acting as judges. This situation is not acceptable today. The stage of enquiry has a fundamental importance as a magistrate has to establish early if there has been a crime, the also if there are persons responsible for this crime. This is a fundamental stage, as it concerns the individual’s freedom. We need consult models that lead to justice administration and emend cosmetically or radically, our system. Thank you, Mr Speaker.

There were deputies even from this side of the house, including I think Hon De Marco who had objected to this proposal.

The direction is totally opposite. If you strengthen the enquiring magistrates [154] not only must they not wear two hats, judicants and investigators, but I am saying you must have specialisation. [155] This is beneficial as you are concentration on either judging or investigating. [157] The truth is and I say it clearly

[154] Adjournment Hon Franco Debono-Extract from Sitting 29-Malta Parliament-7 July 2008 – Hon Debono explains in detail the in genere stage and the role of the enquiring magistrate – ‘I refer particularly to the domain of magisterial enquiries, Mr Speaker, and there must be a distinction. We are not talking of the compilation stage, where a person is already arraigned and proceedings have started along with the hearing of evidence; I refer to a stage called ‘in genere’i.e. before the person is arraigned, It’s a stage when the police has received a report or accusation and thus the magistrate is informed and as per law and constitutional provisions of the Criminal Code, there is clearly a distinction between compilation and enquiry. It’s time, as I mentioned in the recent adjournment, for one to review the system used in this domain where a magistrate is investigator and judicant. I may go into more detail later, but we must look at other models and systems to improve our own. This is when the enquiring magistrate establishes if there has been a crime and whether a person should be arraigned for it.

[155] Bill to implement measures of estimate. – Bill 34-Sitting 187-Malta parliament 1 Feb 2010 – Hon Franco Debono emphasised the need to have specialising magistrates. Mr Speaker I said that this amendment must be introduced in a contest of a wider one. i.e. the distinction between a judicant and an enquirer. There may a difficulty as the number of judicants is limited, but my argument is also the strengthening of the work of the police. This is because there would be the role of the enquiring magistrate, doing enquiries together with the executive police. This would be a specialised person and other magistrates with a normal function, judging cases exclusively related to this work.’

[156] Franco Debono. ‘Vision for Justice’. Times of Malta. Sept 11 2011. ‘Having specialised, full time investigative magistrates, instead of the inquests conducted at present on a pat-time basis by adjudicating magistrates, is another way of improving investigations.’

[157] of Hon Franco Debono-Extract from sitting 29-Malta Parliament -7 July 2008, Hon Debono said- ‘Mr Speaker, in a previous adjournment I spoke of how inquests are treated alternatively. Basically I said we must look at other models, for example the Italian model as to how inquests are carried out. I am not saying we have to follow the Italian model, but we may have some ideas from it. Our system is sui generis, practised practically by us only, but the Italian system joins together absolute integrity and impartiality of a judiciary office to the investigative abilities and police experience. In this Italian system, there is a mixture taking the best out of two systems. On the other hand, in our system – and I see here a major problem – magistrates effect a judicial and investigative role at the same time. Till a few years ago,, we had a system where a duty magistrate did two duty days, not one; thus a magistrate would investigate a case that would end up before him. This brought out the defects of the system which I wish to improve. In reality, our criminal judicial system never before had so much improvement. Indeed, during the recent past we made positive developments bringing us close to the rest of

That many magistrates see inquests as an extra burden. If you specialised in inquests, [158] that is one kind of work, but a judicant’s work is totally different as it does not include investigation. So the citizen benefits, both the suspect when investigated, and the accused before the Court and also the whole system.[159].

the modern world regarding the fundamental respect of human rights, but obviously lots remains to be done to keep the rhythm to avoid regressing. Certainly the fine tuning remains, Mr President. I mean that you cannot have a system that respects the fundamental rights, without first having from inquest stage, where it would have to be established if there is a crime, where state organs investigating are not adapted to all safeguards. In the Italian system, you have the ‘pubblico ministero’, who investigates and eventually prosecute. If there are then proceedings,the ‘pubblico ministero’ can ask for special procedures.’

Mr Speaker, one cannot refer only to the Italian system but also to the English system that’s totally different. Our recent does not find comfort in modern democracies, so it is time to be inspired by these systems; we realise that today’s system is inadequate and we expect too much from our judiciary who operates our system in the best interests of justice.. Mr Speaker we must not ignore what’s happening in the rest of the world if we keep our present system. A change is to the benefit of the administration of justice and we can adopt a system of a team of judicants specialising in inquests, and limited to that type of specialisation. On the other hand, you would have magistrates enquiring, and the two roles would be separate and distinct. This also benefits the administration of justice, which today internationally is the order of the day, in a special fundamental way. This would not only separate the enquiring magistrate from the judicant, but it leads to particular magistrates playing a particular role.

[158]A House Select Committee [Re-Codification and Consolidation of Laws]-Malta Parliament-11th parliament-Meeting 19 of 28 June 2011-discussing the right of legal aid, Hon Chairman Franco Debono, spoke of the investigative role: ‘I suggested also in writing, that the enquiring magistrate – and I made a series of PQs - enjoy independence or impartiality as magistrates but heir role is only investigative, meaning he is almost part of the police corps. Mr John Rizzo: he would not be part of the Police Corps. The Chairman: Allow me, their work is purely investigative, not judging cases, so their role is part of the ‘set up’. Italy is similar where a person having independence and impartiality may authorise tapping etc. How do you look at this, MrRizzo? Mr Rizzo: Not as the system is…

[159] Adjournment of Hon Franco Debono-Extract from Sitting 23-Malta parliament 25 June 2005 – Hon Debono insisted ‘ So it is important to study the possibility of having, as after all in other countries, magistrates who have an enquiring role and others as judicants, for now the situation is one where a magistrate can have both these roles. The present system works as we have serious judicants, but the system needs improvement for the sake of the citizen for the benefit of society so we don’t expect too much from the judiciary, expecting them to wear two contrasting hats. Mr President, I end by praising efforts made by preceding Nationalist governments so the criminal code would be emended extensively. In this area, we may have slowed down; but since the code was promulgated, never were extensive changes made as recently with the introduction of new crime and modification of punishment. This is necessary for a legally modern country. I wish to praise the improvements in the Police Corps which lead to order but also to the guarantee of citizen rights and freedoms.. During this debate mentioned two points, one that is already in the law and the other requiring further debate; these must continue

I regret the gross legal contradiction that the same magistrate investigating with the Police will also be judging the same case. This is a very important urgent reform.[160] As sometimes you are told that the magistrate did not make a conclusion. He may actually judge you! Thus a magistrate inquiring about John of Paul, does not express an opinion regarding arraignment, ends up before the same magistrate in court after having investigated it with the police. Let’s face it, the police inquiry uses a certain terminology and reasoning, so how can the court assign that case to the same magistrate? [161]

Then you have that matter which deals with our imagination regarding presumption of innocence. So first he has heard a lot about him at Police HQ, then he must presume he is innocent! This is not the fault of the magistrate or of the individual, but of the system. We expect too much from our judicants. Many of these are diligent, work well, study the situation, do research, do long hours and I thank them for their work for the State. I always mention Judges Gino Camilleri and Saviour Demicoli [162] who continued working in spite of health problems.

on the road started by this government towards the respect of individuals’ freedoms with the state being vigilant to protect them. Thank you.’

[160] Adjornment of Hon Franco Debono-Extract from Sitting 105-Malta Parliament 28 April 2009 where Hon Franco Debono spoke of urgent reforms in this sector.

Mr Speaker, months ago I spoke of the distinction there should be between the inquiring and adjudicating magistrate. Our system needs a radical change. We must decide whether to choose the English or Italian system. Our system makes a judge inquire on a case and then judge it. The two roles must be divided. I think some magistrates must have an inquiring role and others a judging role, hearing proof and adjudicating.’

[161] ‘lack of access to a lawyer breaches fundamental human right,’ The Malta Independent. 29 May 2009. In his comments, Dr Debono dealt with the need for some magistrates to focus on inquest. – Turning to the matter of magistrates, he spoke of magistrates whose role must be purely investigative. Adjudicating magistrates must have more staff to assist them with their research. Also it is high time that the recording system using cassettes is changed. The situation today is that magistrates must investigate and adjudicate cases. Other countries have specialised investigative judges,’ he said. Magistrates cannot wear two hats – investigative and adjudicating. A problem with the current system, is the fact that a magistrate carrying out an inquest on a particular person could find that same person before him charged with a different offence.’

[162] A House Select Committee [Re-Codification and Consolidation of Laws]-Malta Parliament-11th parliament-Meeting 22 of 7 February 2012. Hon Chairman: ‘ Together with Judge Gino Camilleri, I salute Judge Saviour Demicoli, who in spite of health problems are very dedicated to their work and duty, so we don’t only mention some who are less efficient.

However, I take this opportunity in the name of the committee – and I am sure the Hon members agree – to thank Judges Gino Camilleri and Saviour Demicoli who also encountered serious health problems; the general public must acknowledge all this, realising that these judges struggle on in spite of health issues.’

These are examples of dedication and deserve praise, without mentioning others deserving criticism.[163]

I must say that a bill presented by an ex-Minister not consulting the backbench, there is only one half-hearted provision.[164 It takes you neither here nor there, and it mentions that the Chief justice may assign work of inquest to the magistrates. Nothing new; he can do it today! Indeed you have magistrates doing inquests, others not doing assigned day-duty, we changed nothing! It’s a bad way of doing emendments. [165] This attitude must change to give way to important fundamental reform; at the same time it must be considered in the wider contest of reform of the investigative process as practised by the Attorney General. This is crucial to me and I even mentioned it as a lawyer; but it’s good to be able to raise these issues and shortcomings here in parliament, indicating that in your own profession, for essential reforms to take place

[163] Adjournmment of Hon Franco Debono-Excerpt from Sitting 29-Malta Parliament-7 July 2008.: ‘Mt Speaker, I wish to point out an important item. Problems in this sector are not only statistical, but related to the administration of justice; this involves mostly the idea of balance between all concerned and statistics are sometimes faulty. It may happen that a judicant decides many cases and another one takes longer for his decisions. One must not hurriedly compare, as one judge may be going into more detail than another.. Another judge may explain himself in longer language, quoting jurisprudence while another make express himself in briefer language. This is a case where statistics may be erroneous. In a case referred to as ‘in desamina’ measurement must not be by figures only, though this too has a degree of importance.’

[164] Private members’ Motion 280. Hons Michael Falzon and Jose Herrera. Reform in the Justice and Interior Sectors. [No confidence in Justice Minister Hobn Carm Mifsud Bonnici-Sitting 483-Malta parliament-29 May 2012-Hon Debono states: ‘he then presented a bill – into which I have no time to enter – with no consultation at all as he is panicking re inquiring magistrates. A total confusion! It is clear that inquiring magistrates cannot judge cases. It’s mix-up. After four years of discussion, he came up with something that makes no sense!’

[165]Adjournment of Hon Franco Debono-Extract from Sitting 474-Malta Parliament-16 May 2012, Hon Franco Debono regretfully states: Mr President, four years ago, I think it was May, I made one of my first adjournments in Parliament and I spoke about the right to legal assistance, to interrogated persons. I mentioned the separation of roles, saying that magistrates inquiring with the police must not be the same who adjudicate case. It was mainly what I said. It’s incredible how four years later, I am still talking about the same things! Why? It’s because someone irresponsibly did not do them.

The matter of separation of roles between inquiring and adjudicating magistrates is a wound in our criminal justice system, and it has not been addressed. After repeatedly saying in Parliament the same thing for 3 years,, Minister Mifsud Bonnici presented an amendment in a Law Bill, but it is inadequate. It is cosmetic and insufficient. I am still today, 4 years later, talking about this. Let us not forget that I was responsible for the separation of the Justice and Interior Ministries. It was a main point in my private motion.’

57 in the best interest of the country. When you work as a lawyer, you raise issues related to court halls, but here there is the legislating faculty.

5. Revision of the eligibility procedure and nomination of experts, as well as the introduction of the possibility of ex parte experts;

Fifth point: Revision of the eligibility procedure and nomination of experts, as well as the introduction of the possibility of ex parte experts; [167] A relative problem exists in Court. There was once a translator who had been for a long time working in court; all thought he was an expert in a particular language. The translator had been doing this work for a long time without having sufficient linguistic knowledge of this language and God knows what injustices must have been done! There are cases resting on the nomination of an expert and it is thus important that we re-define the procedure of expert nomination.[168]

For example we say photographic expert, but this was 50 or 30 years ago, and I am not sure about this today. In fact I heard this in the address of a jury speaking about experts. Let’s redefine the term ‘expert’. I think something along these lines was done recently, but not enough. Experts have a great importance in procedure, not only criminal but also civil, and thus they must be regulated adequately. You cannot today produce experts ex parte but experts are only nominated by the court. The time has come that, as other countries, a part may produce experts too.

[166] ] Private members’ Motion 280. Hons Michael Falzon and Jose Herrera. Reform in the Justice and Interior Sectors. [No confidence in Justice Minister Hon Carm Mifsud Bonnici-Sitting 483-Malta parliament-29 May 2012-Hon Debono states: The nomination of experts is a disaster. He never considered how court experts are appointed! A whole confusion, I am reading a point from my private motion.’

[167] Votes of the Justice and Interior Ministry-Sitting 56-Malta parliament-18November 2008-Hon Debono proposed the nomination of experts ex parte. My colleague Hon Herrera also spoke of experts, and I believe we must also have experts ex parte. The system today is that experts are only nominated by the courts. There is no system whereby the civil part brings its own expert. We must seriously discuss the introduction of this system.’

[168] General Estimates 2012 – Votes of the Justice and Interior Minister-Sitting 421-Malta parliament – 2 December 2011 – ‘We must create a system of expert nomination. Some interpreters do not translate well and you find this out as the client tells you, or someone else who happens to be in the court hall. The accused may also bring his own experts. Today these must, inquests must not be appointed by the Chief justice as they be remain under the judicial arm, be court appointed. We have to rethink the way investigations are conducted.’

The right to a lawyer during interrogation, regarding recent decisions in the European Court, as well as the rule of disclosure and other ancillary matters.

I now go to my sixth point, the right to a lawyer during interrogation regareding decisions of the European Court, as well as the rule of disclosure and ancillary matters. A lot has been said on the right to a lawyer, which was one of the best reforms in this legislature; thanks to pressure made for the introduction of this reform. [169] But, as I said there are sentences of the European court [170] as well as the European commission – I spoke to Simon Busuttil[171] who

[169] Bill implementing Measures and Estimates – Bill 12 –Sitting 64 – Malta Parliament – 3 Dec. 2008- Hon Debono from the first year of the 11th legislature repeatedly spoke out on the right to a lawyer in a speech totally dedicated to this subject. ‘In this Parliament I spoke three times about this subject, and this is the fourth time in 6 months. I mean the right to a lawyer for a person who has just been arrested. Mr President, the right does not yet exist.

Looking at sub-article ‘AT’ of article 355 of the Criminal code – that is not yer in vigore – this contemplates this legal right. The position now is that, if your client calls you, he has to explain the case, and you try to talk to the inspector too. You often end up having to give info as you had no right to speak to the arrested person. You may also be asked why you did not go to speak to the arrested person not knowing that you do not yet have this right. He has the right to know why he was arrested without having the right to speak to a lawyer in spite of the fact that this right exists in the Criminal Code with extensive emends since 2002. I spoke about this law already three times: during the budget estimates on 18 Nov and during the adjournment of sittings of 25 June and 7 July of this year.

It is thus important that we implement such provision which becomes effective through a legal notice. Tied to this provision there is article 355AU concerning inference through this lack. In fact the law contemplates that the arrested person consults for no more than an hour a lawyer of his trust. This general principle suffers from exceptions contemplated in sub-article 5 of the same article. The same law contemplates also that before interrogation, the person in custody must be informed by the police of its rights under this sub-article. In order that a person has a decent hearing and serenity at this stage, I believe that 2 articles, 355AT and 355AU, must become effective by legal notice.’

[170]Bill implementing measures of Estimates-Bill 12-Sitting 64-Malta Parliament-3 Dec 2008- ‘A recent decision by the Human Rights European Court against Turkey on a similar point, i.e. regarding a person arrested in Turkey on certain crimes, that an arrested person had no right to consult a lawyer of his trust. I believe that arrested persons in Turkey already have this right but it’s not always granted and thus the court decided against. This, apart from ordering a financial compensation and other remedies. So considering such an important sentence, we must move to make things effective even to the benefit of the police themselves.

Mr President, I conclude by mentioning that the above should lead the Nationalist government to continue on the right road and implement this provision. There were in 2002 extensive amendments giving a better impression of the country as we have improved the Criminal Code in line with modern democracies, though a legal notice is awaited. I know the government is busy and acting

Is chairperson of the European parliament Committee on justice[172] who is working on this proposal too – working to harmonise the situation in all the European Union. Let’s not forget that in 2009, we were the only EU country not giving the right of access to a lawyer during interrogation.[173] To me, 20 years after what happened to Pietru Pawl Busuttil, was inacceptable as it was the best gift we could give to a person going through this martyrdom.[174]

Even regarding the rule of disclosure, today’s provision is insufficient. It was taken from English law [175] but only a part – which is a dangerous thing.[176]. It is a step

With its work, but I appeal for the emission of this legal notice. This is one of the few amendments of 2002 not yet applied though they are of benefit to the accused and the police. Thank you.’ [171] In an article written today by the leader of the Opposition simon Busuttil ‘Right to a lawyer is fundamental’. Times of Malta, 7 March 2012, he acknowleged that Franco Debono was the main promoter of the right to a lawyer. ‘In Malta, we have seen a number of criminal cases collapse, as the accused did not have the stage of police interrogation. This led to the release with drug charges. The concern is well-founded as we are talking about the state guaranteeing a fair trial that is fundamental in a country based on the rule of law. A fair trial lies at the base of the judicial system that society can trust and that can bring real justice by filtering the innocent from the guilty. So there is no question that having access to a lawyer should be considered a right, a fundamental right. This debate is not unique to Malta, where it was pushed particularly by MP Franco Debono. It is also taking place at a European level and the European Commission has presented a proposal for a law that guarantees this right.’ [172] Committee on Civil Freedoms, Justice and the Interior of the Europeam Union. [173] Franco Debono, Press Release, House of Representatives, The Palace, Valletta 23 march 2009 – Hon Franco Debono in 2009 said in point 3. ‘I appeal to the Justice Minister that with greatest urgency he introduces legislation this right to legal aid during interrogation by the police. I had these last months the opportunity to appeal four times in Parliament on this issue but there was no change. Such a situation is inacceptable among so many countries which have this right already.’ [174] Motion 439-Malta Parliament-25 Jan2012-Hon Debono pointed out: ‘They actually ask me why I, as a lawyer, raised the matter of the right to a lawyer during interrogation. That’s not the question, but why the state has not made this a reality. Why should they ask this to a lawyer, whoever he is? It’s his duty, and more so that of the state, without looking askance at lawyers for doing their work! With due respect, as a lawyer, I could have calmly done constitutional cases but I spoke out and put pressure for its inclusion. Some days ago, we commemorated the event of Pietru Pawl Busuttil. However had it not been I to vote in Dec 2009, more than 20 years later, we would still be without the right of access to a lawyer during interrogation, though in reality we are still not in line. Let’s not forget, either, that if the event of Pietru pawl Busuttil is considered recent, and 25 years old, a more recent event of 10 years ago made our courts pass through an earthquake much bigger than that of Pietru Pawl Busuttil.’ [175] Criminal Procedures and Investigations Act 1996 [CPIA] as amended by a Criminal Justice Act 2003. [176] Bill implementing Estimate measures-Bill 34 – Sitting 185-Malta parliament-4 Jan 2010-Hon Franco Debono spoke on the origin of the disclosure law whose roots are in the English law. ‘This involves a laborious process so we must be careful so the reform is successful. Other countries have various manuals and details on how investigations are carried out and we must concentrate on this aspect. This is a very sensitive amendment and tied to it there is the matter of disclosure. One must also consider the inference tied to it, as especially interpreted in England. This law is modelled on English law and one must learn from the experience of other countries. We have a procedure totally based on the English law

60 In the right direction, but insufficient as an interim measure. If I were in parliament when that law was drafted, I would not have accepted it without a reform of that provision.]177] Disclosure is a concept in sentences called ‘access to the file’ [178] It means that if one calls his lawyer telling him he is accused of theft, if the inspector says nothing about the indications he has of proof, as long as there are no considerations of national interest, of contamination of proof, or other sensitive reasons, the lawyer cannot do his work. For how else can he give advice? If I client tells me he is suspected of theft, what advice can I give him? Don’t forget that I have a certain responsibility as lawyer on the advice I give. [Codification Committee] [179]

Mr President, selfishly, we lawyers prefer that it was not implemented, firstly as you have many visits to Police HQ, and you also have the responsibility of advice.[180] Before they would come with a ready statement telling you they admitted, or

The substantive in criminal law is based on continental law, but much of procedural law is based on English law, so we may learn from countries like England. Mr president, regarding the matter of inference, there is some scepticism and one must see how it works. Some discussion is also expected. I spoke to the Minister on this aspect, and we must be clever to implement this reform which is not cosmetic. I think that my colleague Hon Herrera agrees with me that till today, when people call regarding their arrested relatives, you waste time telling them that the lawyer cannot speak to them and some try to speak to another lawyer thinking you are lying. This has today been surpassed. In my declarations, I have spoken about this and the time it took to become effective.’ [177] General estimates 2012- Votes of the Minister of Justice and the Interior-Sitting 421-Malta Parliament-2 Dec 2011—Hon Debono explains: -‘I also wish to talk about the right to a lawyer. I had spoken so much about this; I am sure all agree that this was a good thing; but we are still not in line. The access to a lawyer must be ‘during’ and we are still not in line with the European Court; the importance of being in line, i.e. a real access to a lawyer. There are also other problems, as for example, disclosure. Many lawyers go to give advice, but without disclosure, on what shall they give advice? We have to fine tune it. In fact, this was about to become effective, and I not only put pressure for this to be in vigore, but I said it must be upgraded and complemented, and the Minister knows this and can confirm it.’ [178] ‘lack of access to a lawyer breaches fundamental human right’, The Malta Independent, 29 May 2011. Dr Franco Debono gave these comments to the press, regarding disclosure. – ‘He also commented on the rule of disclosure, this is, the police inspector telling the lawyer what evidence he has on his client, prior to the consultation. As it is, when the lawyer turns up, he is only told why his client has been arrested. A lawyer is expected to give advice, without having enough info, he said. However, the law as it stands now needs fine-tuning and upgrading, especially regarding the right to disclosure, as is the situation in other jurisdictions, in that a lawyer, who is consulted by a client, must have access to police files, or at least have enough info to advise his client, since a great responsibility has been put on lawyers. ‘It was a step in the right direction and it was high time that a commitment was made, but it is not enough. It is also time to consider whether a lawyer should be present, for the whole interrogation, and not just speak to the client before,’ Dr Debono said.’ [179] House Select Committee [Re-Codification and Consolidation of Laws]-Malta Parliament-Eleventh parliament-Presided by Hon Chairman Dr Franco Debono , meeting 18 of 15 June 2011 and 19of 28 June 2011 discussing the strengthening of the right to legal aid to arrested persons where, apart from the Hon members, there were present to give their opinion, Dr G Caruana Curran, Dr Joe Giglio, Dr Noel Cutajr, Dr Stephen Tonna Lowell, Dr Peter Grech, Dr Edward Gatt, Dr Pietru Pawl Zammit, is-Sur John Rizzo, [Commissioner of Police] and Mr Pierre Calleja [Asst Commissioner] [180] House Select Committee [Re-codification and Consolidation of laws[ - Malta Parliament – 11th Parliament –Presided by Hon Chairman Dr Franco Debono in meeting 19 of 28 June 61 did not admit, or said this or not, and you go forward on what he said. So these laws put a responsibility much greater on the legal profession, but they must be placed in a position that makes them have a better function. [181] In other countries, these issues are regulated by manuals and guidelines of a certain detail as to how they are to be applied. In our country, following lots of foot dragging, we introduced the right to a lawyer half-heartedly.

I repeat that we must arrange this as soon as possible before we have another floodgate, let’s not forget. Many cases stopped, there were declarations of breach and others of dismissal.[182] I was the lawyer in the first dismissal case

Hon Debono noted’ ‘Observation in this context, this law that was adopted, put a new, great responsibility he would not have assumed. As you say, Dr Gatt, not a time responsibility that he now has to go to a police station or HQ etc., but a greater responsibility of giving advice to the client. There is a wider context…and I saw European court decisions involving disclosure for a certain limit. I wonder if Mr Rizzo has any forensic observations to make.’ [181] Bill Implementing Estimate measures – Bill 34 – Sitting 187 – Malta Parliament – 1 Feb. 2010-Hon Debono said: Mr Speaker, I have to say this again as I have had to appeal for it to be implemented; I did not go into the detail of inference or less and in the context of this reform, but I limited myself to call for its implementation. It’s good today to have a discussion regarding ancillary aspects needing discussion, including disclosure. We must consider that it is a victory for the citizen. It’s a fundamental right but also a commitment for the legal profession, more responsibility, and we must consider the right of disclosure, i.e. the lawyer or legal procurator giving advice must have info about the investigation to allow him to give advice. I am saying this as you may have a situation where the introduction of this amendment may come across problems. We must look at countries such as England, as our law is modelled on the English one. We must study the implementation of the rule of inference and the rule of disclosure. From the experience of these countries we must learn about the implementation of this amendment reflecting the fundamental right to an adequate hearing. Someone said this must be included in the Constitution. It already is, and thus we are saying it belongs to fundamental rights. The Constitution speaks of the right to an adequate hearing. In the European Court, the fundamental right to an aquequate hearing has been included in the general provisions of law. [182] Lack of access to a lawyer breaches fundamental human right.’ The Malta Independent 29 may 2011. Recent judgements declaring that statements taken without the presence of a lawyer, are in breach of fundamental human rights, and possibly ‘null’, and ‘without effect’ could potentially open the floodgates, as every statement obtained by the police prior to Feb 2010 can potentially be declared to be a breach of human rights, criminal lawyer Franco Debono and nationalist MP told The Malta Independent on Sunday. It is not the first time that Dr Debono spoke about the various aspects of the investigative set up that need revision. The law granting access to legal advice was passed in 2010, but there was a delay in implementing it. Dr Debono said that the reason why he had absented himself from a vote in parliament on one occasion, in 2009, was to prove a point – the delay in implementing the law that provided the right to legal aid for people under arrest had been long overdue. It was finally implemented in Feb 2010. This means that potentially every case investigated before Feb 2010 is ‘in breach’ and it is a question of how it can be rectified. As a fundamental human right, it could possibly create a problem with every court proceeding. Recent constitutional judgements stated that when access to a lawyer had been denied, it was in breach of fundamental human rights. This was the result of systematic denial to legal assistance, since the law does not allow access, he said. The landmark judgements that established this principle were the cases of Alvin Privitera, mark Lombardi and a minor, in which Dr Debono was defence counsel. This could have enormous repercussions on every case investigated before Feb 2010. Naturally, it is up to the court to decide in each particular case. Till Feb 2010 in Malta, an arrested person had no access to a lawyer before arraignment, and this situation, besides being 62

Another point regards PQs[187] I did years ago on video recording of statements.[188] I don’t think each statement should be video recorded as some cases are plain sailing, but when you have a sensitive case, homicide or an illiterate person, there should be video recording. The Police have an equipment for audio, though not sufficient, but they have no video recording. [186]

[187] Hon Franco Debono during legislature, made a series of PQs on video recording of statements. PQ 24751-Malta parliament-Hon Franco Debono asked Justice and Interior Minister which equipment for video and audio recording are available to the Police Corps. Will this improve? 22/3/2011 – Hon Mifsud Bonnici replied that the Police presently have an audio recording cassette, recording three cassettes simultaneously. This is used in serious criminal cases. This equipment will be upgraded. Sitting 332-28/3/2011 PQ 25409- Malta Parliament Hon Franco Debono asked Justice and Interior Minister when is it planned for the Police Corps to have an upgrading of recording equipment for use during statements of arrested person. Sitting 340-2/5/2011. In PQ 27/103-Malta Parliament-Hon Franco Debono asked Justice and Interior Minister,wht is the present situation re the purchase of upgraded video recording equipment. 22/6/11. Hon Justice and Interior Minister Carm Mifsud Bonnici said the process is still in its early stages, with studies on best equipment for Police needs. It’s thus premature to calculate a cost. Sitting 375 – 28/6/2011. PQ 34410 Hon Franco Debono asked Parliamentary Affairs and Interior Minister Hon C Mifsud Bonnici when will the equipment for video recording of statements will be available and what is its cost. The Hon Minister replied that this was at an advanced stage but it is not known how much it will cost. Sitting 474-16/5/2012.

[188] House Select Committee [Re-codification and Consolidation of laws[ - Malta Parliament – 11th Parliament –Presided by Hon Chairman Dr Franco Debono in meeting 19 of 28 June 2011, entitle Reinforcement of the Right to Legal Aid for Arrested Persons, in view of the right now introduced of a lawyer up to one before interrogation, considered recent European Court info whereby this right of assistance is not only before, but also during interrogation; innovations such as video recording are of utmost benefit to one and all.

[189] Votes on Justice and Interior Ministry. Sitting 273. Malta parliament – 4 Nov 2010 – Hon Debono referred to the fact that: ‘ I recently spoke of recordings. The Police has six set ups complementing the right to a lawyer, recently introduced. This right must be continuously observed to ensure the possibility of improvement, but video and audio recording serve to eliminate many suspicions, doubts and allegations, both regarding the interrogated person and the police. I can state that my 10 yers’ experience in criminal cases tell me that most Police members are serious and carry out their duties well but, as in all aspects of life, some may be less efficient. I repeat that they have 6 set-ups for audio and video recording.

Until it is obligatory to record, an inspector may do so if he deems it necessary. Honestly, the recording of each statement is not necessary; a practical inspector handles statements very well and organises them in a way that he requires nothing else for court. However an inspector must be clever enough…though there is no hard and fast rule….in any case recording should not be mandatory as time could be lost. One must strike a balance in everyone’s interest. I also had previously the opportunity to speak about recordings in court.

I believe that the time has come for this to be done, as even from facial expression you can see if he is scared or has been hit. In reality it is rare to hear about any beating of a person during his custody with the police, but even one is worrying. The police force has evolved and these cases are isolated but even one is too much. Statements must be recorded and for 4 years I have spoken on this. It does not cost enormously but its importance is great.

7. Revision and re-definition of certain Attorney General’s powers as well as his duty to explain his decisions in some circumstances.

Seventh point: revision and re-definition of decisions of the AG, as well as explaining his decisions in certain cases. [190] One of the roles of the AG is the result of our mixed system. The time has come to examine his powers, roles and functions. He is a bit everywhere [191] I have all respect for the Commissioner of Police but also for the AG and lawyers in his office who work well, but their resources need to increase. [192] Firstly many lawyers left the AG’s office some years ago; they were substitute but took time to get used. I refer to Aaron Bugeja who was a lawyer but did not work much in the criminal field; however in a few years he was successful in the criminal domain. [193]

[190] Franco Debono, ‘Vision for Justice’, Times of Malta, Sep 11, 2011 – ‘The role and powers of the Attorney General, counsel to Government and chief prosecutor, should be analysed, re-examining his latitude of discretion, in certain cases without the duty to give reasons.’

[191] Adjounment of Hon Franco Debono, sitting 474-Parliament of Malta-16 May 2012 – Hon Debono said: ‘I want to live in a country where the AG has power, role and functions reviewed as our system is hybrid, containing part of the British and continental systems; he is the government’s lawyer, Public Prosecutor and sometimes draws up bills in which he is involved. A whole revision is needed in the Office of the AG, and I want to live in a country where this reform was done years ago.’

[192] Votes of the Justice and Interior Ministry – Sitting 162 – Malta parliament – 19 Nov 2009 –Hon Debono said that resources in the Office of the AG must increase – ‘I wish to praise the work done by the AG, who needs more resources. I have worked as a lawyer for ten years, I worked closely with the AG, especially in criminal law. I believe that Silvio Camilleri, who knows the law inside out did miracles with the resources at his disposal; I take the opportunity to praise him and his staff as I know they have an enormous amount of work. I think the Minister agrees with me that this office needs more staff where many acts of accusations enter and so much other work. In fact I know the minister is working on this.’

[193] Speech in answer to the Malta President’s Speech – His First Speech in Parliament, mentioning the role of the AG- ‘The office of the AG was mentioned. Truly some lawyers left this office and they were of a certain value, as I know them as my colleague knows them. But the AG has now employed a new team which is learning a lot and I know that this office has plenty of work. I also believe without rhetoric, that in spite of the human and other resources at his disposal, he does a lot of work. Even I as defence lawyer, do not always agree with the AG’s decisions, but I believe that considering his duties, we must strengthen him. I am informed that there was recently the recruitment of new lawyers

66 Judge Padovani Grima made a good point this morning, saying that we need many resources [194] at the Office of the Attorney General. I tried to find a sentence of judge Quintano who analysed per capita how many judges are needed as more are required. I know that the Minister has nominated more judicants, but more are needed. His powers must also be redefined. He is doing a redrafting of laws, including those affecting him. He is a public prosecutor, counsel to government, participates in inquests and compilations – a bit everywhere. [196] let’s see if some of the AG’s functions can be done by others and also if the role of the magistrates concentrating exclusively in inquests, could fit into the set up of the AG.

This could be a major reform and a lot can be said about this redefinition, revision and power analysis, the functions and role of the office of the AG in our legal system. [197] it’s good to take stock of the situation with reference to the Police Corps with an analysis made on the reality of the Office of the AG today, and how it may change. The AG has a fundamental role, with a status of judge of the Superior Courts, as per the Constitution – section 90, I think, and makes judicial decisions though they are administrative! A major problem I see at the AG’s Office – apart from the structure – is that he gives no explanation to his decisions. [198]

naturally one must give them time to get used, but I think that in this case we have the right direction.’ [194] Adjournment of Hon Franco Debono – Excerpt from Sitting No. 105-28 April 2009 – Hon Debono repeatedly mentioned the need for strengthening and increasing resources. ‘Mr Speaker, I praised the good work of the Police Corps and I cannot also praise the work of the Office of the Attorney General. I believe that there too we must put in more input. At the AG’s Office we must increase the staff. One realises this when one considers the great amount of work done there. Granted, this office continued to be encouraged while needing more encouragement.’ [195] ‘New Judge points to high rate of decided cases by the judiciary.’ Call for improved security at the law Courts.’ Times of malta 12 June 2012 – ‘She pointed out the lack of resources at the AG’s office.’

[196] Motion of lack of no confidence in Government. Sitting 439-Malta parliament 25 Jan 2012. Hon Debono said that in our legal system, you find the AG everywhere wearing several hats and emphasised the need of ‘ an extensive revision of the role of the AG in our legal system and of his discretionary powers. In our system, the AG is a bit of everything, everywhere. He drafts laws, is prosecutor, gives advice to government, drafts laws in which he himself is part before the courts and participates in inquests. A great mixture!’ [197] General estimates 2012 – Votes of the Justice and Interior Minstry – Sitting 421 – Malta parliament – 2 Dec 2011 – Hon Franco Debono believes in the detailed examination of the AG’s role. ‘I wish now to pass on to the redefinition of the AG’s office. We must here see the role of the AG in our system.’

[198] Votes of the Justice and Interior Ministry – Sitting 56 – Malta Parliament – 18 Nov 2008 – Hon Debono emphasised that since 2008 the AG must give reasons for his decisions – ‘’Where the attorney general has discretion, I believe with responsibility – that he can make important decisions the difference is drastic and great in punishment. One must consider, as in England, that this discretion remains with the AG, but at the same time giving reasons for decisions. This leads to stability and uniformity whose requisites and principle is an element making the justice system acceptable, advanced and in the best interests of society and democracy. Let us now come to

This matter needs to be addressed and amended.[199] For example deciding sending one to a jury and another before a magistrate. I don’t say this is done capriciously or with a purpose, but there are matters of discrimination, even involuntarily, as one case goes before a jury with an act of accusation, while the other is subject to an article and goes before a magistrate. [200] ; if one feels discrimination, one may oppose that decision. Today’s position is that one cannot oppose a decision of the AG.[202]. I will mention it

the matter of appeals by the AG. It is also true that appeal have increased also as the grounds for appeal are wider. Maybe during the transition period, there were problems, but I think that the situation today is stable. There was an intervention by the chief justice who said there is a new right creating balance.’

[199] Bill implementing measures of Estimates – Bill 34 – Sitting 187 – Malta parliament – 1 Feb 2010 – Hon Debono insisted: ‘If the AG decides to send an accused downstairs, the punishment is between six months and ten years, but if he decides to send him before the criminal court, it’s different. ‘All depends on the absolute discretion of the AG. I have no doubt that the AG exercises discretion with reason, justly and wisely; but the time has come – and I encouraged someone doing a thesis to think of this – the AG gives reasons to send a person for adjudication at the magistrates’ court but not before a judge or vice versa. We must think of this too and I spoke about this to the Justice Minister.’

[200] Bill amending the Act of probation; Bill40 – Sitting 203 – Malta parliament – 22 March 2010. Hon Debono mentioned the emanations of discretion if vast and free of the AG. –‘ I also spoke of a matter raised by Malta Today’,regarding the discretion of the AG in the case of drugs. The AG has the right to decide before which court it goes – magistrates or Criminal. What’s the difference? The difference is great as well as punishment. At the magistrate’s court, the maximum punishment is 10 years re trafficking, while at the Criminal Court the maximum is life imprisonment and the minimum four years. We are here talking of trafficking and cases of conspiracy and possession, not of simple possession.

The AG’s decision makes a great difference. I have no doubt that he does it wisely but safeguards are needed to create a balance. I wish to deal more with this matter, but not today; I have made a suggestion in Parliament, regarding the discretion of the AG to decide where a person must be judged, giving reasons. It’s like that in England. A student asked me recently to help her in her thesis and I suggested the above. In England the position is like that with the addition that the AG gives reasons for his decisions; in this manner, one eliminates abuse.’ [201] House Select Committee [Re-codificatioin and Consolidation of Laws] – 11th Parliament -0 Malta parliament – Meeting 32 – of 23 may 2012 Hon Chauirman Dr Franco Debono raised for discussion: ‘the discretion of the AG is important to me and I do think that the AG must have discretion – God forbid he didn’t have - but he must give reasons, as in England – I believe. I am saying this to direct the discussion towards this matter.’

[202] Dr Debono regarding the vast and free discretion of the AG spoke of a Bill actually giving more rights – ‘Franco Debono warns he will not back the government unless ministry is split immediately.’ Timesofmalta.co 21 Nov 2011. ‘He stressed today that government needed to shelve proposals made in a recent bill moved by Justice Minister which he

This range of punishments is a fundamental one in the Criminal Code! Even when judicants tried to interpret it in the case of a legal point, their sentence was complicated. This happened as when crime was committed relating to the Code, they did not sufficiently consider the scales! So there is a whole confusion! In practise, what’s important is the movement of scales. Indeed, when the law says certain punishments must increase or decrease by a grade, would we be looking at the minimum or maximum? I am only mentioning one section but in reality, there is so much more to consider!

Cases Presented or Deferred[207]

Proposal eight mentions cases presented and deferrals.[208]. Once more th new Judge mentioned how a process takes four weeks before a magistrate and six before the AG.[210] Does the instruction work as AG? The instruction is a magistrate of the instructor phase. During deferment, a lot of time is lost and a file remains for lot of time at the AG’s OFFICE.[211] But there are other technical matters. For example, if you admit at presentation stage and it’s a crime related to over 4 years in prison, the court can proceed to a sentence, but if you admit at 2nd phase, many times

[207] Private Members Motion 280 – Motion of Hon Michael Falzon and Hon Jose Herrera on Justice and Interior reforms [No confidence in Justice Minister Carm Mifsud Bonnici] – Sitting 483 – Malta parliament – 11th Parliament – Meeting 32 of 23 May 2013 during a discussion on Consolidation of Criminal law. Hon Franco Debono stated that ‘The time has come to discuss the Code holistically, both procedure and the substantive, and whether non-included laws should be included apart from reform intended to address today’s realities. Even the deferment matter, for example, needs fine tuning.’

[209] House Select Committee House Select Committee [Re-codificatioin and Consolidation of Laws] – 11th Parliament - Malta Parliament – Meeting 32 – of 23 may 2012 Hon Chauirman Dr Franco Debono referred to the pre-occupation of some guests regarding the deferment matter of six weeks which no longer makes sense, as compilations advance by fits and starts, leading to many defects. It was also proposed that only one deferment is done and sent to the AG when the prosecution closes its case, who decides on whether to modify anything and at this instance the right is given prima facie, not at a premature stage of instruction.

[210] ‘New Judge points to high rate of decided cases by the judiciary – Call for improved security at the courts.’ Times of Malta 12 June 2012. ‘She went on to share a few thoughts on how the system could improve. The duty magistrate of the day should be assigned a clerk to handle the work that came in, such as inquests; there should be a study of the system where court documents are sent from the law courts to the AG’s office and four weeks in court.’

[211] Votes of the Minister of Justice and the Interior – Session162 – Malta Parliament – 19 Nov 2009. Hon Debono says: ‘I wish to mention the terms of deferment of the AG. I wish to praise his work, who needs more resources. These last ten years of working at court, I had several times contact with the AG in criminal cases. Dr Silvio Camilleri knows the law inside out, did miracles with his resources and staff during a great amount of work. I think the minster agrees with me, that the staff needs to be increased in this office where many acts of accusation enter with deferments coming and going. In fact I know that the minister is working on this matter.’

70 There is a whole compilation, and more than one or two years pas, as the court cannot arrive at a sentence. A small amendment would create more time efficiency.

Hon Mario Demarco mentioned the theory of the precedent, the matter of sentencing policy. It’s totally absent in our system and needs to be introduced The punishment for theft of LM100 and others must also change. One must consider that Lm10 of 20 years ago is not the same as today. A mobile phone today costs more than Lm100!

Bail Let me also mention articles 574, 575[212] dealing with bail which I have been mentioning in court for 12 years where we should proceed to a legislative intervention. [213] Article 575 was introduced after the Pullicino case dealing with the security of the state and crime leading to a lifetime in prison; there are certain considerations the court takes before reflecting on bail.

Then there is article 574 dealing with the rest of crime, stating that a person deserves bail if guaranteeing to appear on the day of the process. Unfortunately ou courts are making the mistake of applying article 575 to all crime! They are not supposed to legislate but interpret law. Regarding bail, we unfortunately don’t have in this country electronic tagging[214] with a person enjoying freedom while supervised. This creates a balance between the interests of society and the accused. Legislation must amend article 574 and 575. [215]

Appeal from bail is another way of introducing amendments by fits and starts!

[212] Criminal Code, Chap 9 – Laws of Malta.

[213] In a case where Dr Franco Debono was lawyer, the following was decided: ‘Accused denied bail wins right to immediate appeal.’ Times of Malta 21st April 2012. ‘A judge yesterday ordered the government to change the law so the accused would not be at a disadvantage in relation to the prosecution when dealing with court decisions on bail. In a constitutional application filed against the AG, the Minister for Justice and the Police Commissioner. Mr Axisa complained that there was no equality of arms between the prosecution and the defence when appealing from a court decision on bail. The court ordered the government to move an amendment to the law in Parliament within 3 months.’

[214] PQ 34694 Malta Parliament, of Hon Franco Debono asking Interior and Parliamentary Affairs Minister if the Police Corps has electronic tagging and if this equipment was intended to be purchased, and the cost.’ 17/05/2012 – Hon Mifsud Bonnici says that at present, the police has no electronic tagging but this may be introduced under Act on Reparative Justice. Costs for this equipment are substantial both for purchase and running, but vary as per type of system used.’ Sitting No. 479-25/5/2012.

[215] Franco Debono, ‘Vision for Justice.’ Times ofMalta, Sept 11, 2011. ‘Bail should be revised and electronic tagging introduced.’ See Appendix A.

We introduced appeal from bail.[216] When an accused gets bail, the AG may appeal, but when that person is refused bail, he cannot appeal! [217] You may repeatedly do applications before the same magistrate. Some magistrates don’t change their decision Why is there no right of appeal from bail? It is technically a revision not an appeal while the AG has this![218] When you have an investigative court action, and the file goes to AG, you have a right of revision as you may make an application before a judge when the acts are before the AG. But this case was not before the investigative court; it came up in a case of criminal judicature, where potentially this case could have taken one, two years, with the acts remaining before the same magistrate where I keep asking for bail before the same magistrate, but I do not have the right to ask for a revision before another judicant. Thus I made a constitutional reference, [219] I won at first instance [220] and it is still subject to

[216] The revision from this bail decision was only given by the AG, however the court did not agree. ‘Constitutional Court milestone judgement on right of appeal from bail decisions.’ Times of Malta 20 April 2012 – ‘an accused person should have the right to appeal when bail is refused in the same way as the AG enjoys the right to appeal when bail is refused in the same way as the AG has the right to appeal when bail is granted. The decision was handed down by Mr Justice Tonio Mallia following a constitutional application filed by lawyer Franco Debono on behalf of Conrad Axisa….’

[217] General Estimates 2012-Votes of the Justice and Interior Minister-Sitting 421-Malta Parliament- 2 Dec 2011 – Hon Debono insisted on the discrepancy existing between the prosecution and the defence in bail appeals – ‘For example I said that in bail, the prosecution – if bail is granted – has the right to seek a revision but not the defence! I have been saying this must change as the lack of it leads to a person being re-arrested after not being granted bail. And the accused must be given this right. The lack of review makes lawyers like me apply repeatedly before the same magistrate with no result. In 2011 this is inacceptable. Even in view of equality of arms, the accused expects to appeal.’[221]

[218] House Select Committee [Re-codification and Consolidation of Laws. Malta parliament. Meeting 32 – 23 May 2012. Hon Chairman spoke on bail at Criminal Court. ‘The way drafting was done is a problem needing tackling. There was recently an issue regarding bail appeal by the AG who has the right of appeal but not the accused. Today the AG must have et the same problem as I regarding lack of right of appeal Why? As ironically the law provision speaks of appeal when the Magistrates’ court grants bail. What happened now is that, following bail, the AG wanted to appeal but the law provisions did not allow it. This is due to short-sightedness on how amendments are done. And this should be one of the bases of the process of consolidation and harmonisation.’

[219] Axisa Conrad vs AG et. 20/4/2012. First Hall of the Civil court [Constitutional sitting]. Hon Judge Tonio Mallia, Application 53/2012. ‘The court grants the first appeal based on the application of Article 575A[2][3] for only the AG, stating that this different treatment breaches the appellant’s rights of ‘equality of arms’ and suggest that the competent authorities remedy this lack within 3 months from today; if nothing is done within 3 months, this Court will, by this sentence, order that, as per Article 575A[2][3] the same right is given to the accused mutatis mutandi.’

[272] ‘Bail decision judgement is welcomed by legal experts.’ Times of Malta, 22 April 2012, - ‘A landmark decision which held that it is unconstitutional to deny accused individuals the right to appeal against bail decisions was lauded by legal experts yesterday. Criminal lawyer Franco Debono, the lawyer who presented the law in question, was also pleased with the judgement asking why it had taken so long. ‘it is very perplexing that the accused was not granted the right to appeal when this right was granted to the AG way back in 2002.’ Dr Debono said. He felt the situation had arisen due to the AG’s triple role: public prosecutor, counsel to government and legal drafter.’ ‘In the same article former European Human Rights Judge Giovanni Bonello expressed 72 This may not constitute breach of fundamental rights, but we do not introduce laws and amendments only if they arrive at a precipice of breaching fundamental rights.[222]. Ex- Judge Giov Bonello, [223]during debate between him and I [224]

Cautious reservation about the ruling, saying ‘Granting bail, besides affecting the accused, brings with it societal issues, as it results in a potential criminal being set free, and the possibility of intimidation of witnesses, suppression of evidence, risk of absconding. Denying bail affected only the accused. Are these two situations equal and comparable? Discrimination can only be established when one compares like with like.’

[221] ‘Axisa Conrad vs AG’. 7/8/13. Constitutional court STO Chief Justice Silvio Camilleri. Hons Giannino Caruana Demajo and Noel Cuschieri. Civil Appel no. 53/2011/1 which was an appeal by the AG and the Commissioner of Police to a sentence given by the First hall of the Civil Court, Constitutional sitting of 20 April 2012. The court stated that it was neither show nor alleged that the crime of which was accused the appellant was in law as provided by Article 575A[2] proving that the AG could never use the faculty of ‘appeal’ or ‘revision’ given to him in Article 575A [2] and thus sub-articles [2] and [3] of Article 575A gives no right to the AG in criminal procedure against the applicant. The latter thus has no direct and personal juridical interest to remove the mentioned sub- articles. For motives above, this court grants the appeal, cancels the appealed sentence and declares the appellant having no personal juridical interest in this promotion of this present action and consequently frees the accused of the observance of the judgement.

[222] ‘Debono: the Ministry was split in the wrong way, MP silent on voting intentions- ‘There are no pending votes before parliament.’ Timesofmalta.com, April 23 2012. ‘Regarding last week’s Constitutional court judgement extending to the accused the right of appeal from bail decisions, Dr Debono said law should not be amended just when fundamental rights are breached but right should be granted independently of whether the situation was in breach of fundamental rights. A democratic system was not health if it had to await a declaration of breach of human rights in order to change the law.’

[223] ‘Judge Giov Bonello stands his ground’, timesofmalta.com 11 May 2012- ‘Dr Bonello former European Court Judge, disagreed with the local judgement which found ‘inequality of arms’ in as much as Maltese law allows the prosecution to request a review when bail is granted, but does not give an equivalent right to the accused when bail is refused. According to the local court, this constituted a violation of the human rights of the accused. The Maltese case [Axisa – which found the violation] and the Strasbourg case [Stephens – which found no violation] have virtually everything in common, Judge Bonello insisted. It is true that the Stevens’ case did not deal with the accused being freed on bail; it dealt with the accused being freed due to the illegality of detention. It is also true that this is irrelevant to my, or the courts’ argument. The setting of the accused free has nothing to do with different consequences on the individual and the community from not setting the accused free. There can be no equality of arms when the law applies one norm to one of a different norm – and this whether the accused is set free on bail or because of his detention is illegal. In Axisa, this was the issue; if there was inequality of arms when the law allowed the prosecution the right to appeal, if the accused is free on bail, but not if his release is denied. In Stephens, this was at issue; whether there was inequality of arms when the law allowed the prosecution the right to appeal if the accused is released on grounds of illegality of detention, not if his release is denied. In selfsame circumstances, the same logic should prevail. On equivalent facts and law, the Strasbourg court found no violation but the Malta Court did.’

[224] ‘Updated Judge Bonello stands his ground, ‘timesofmalta.com, 11 may 2012 – And so does Franco Debono…’

‘Commenting on Judge Bonello’s reaction, Dr Debono said that Judge Bonello’s contribution today proved that a statement he made earlier was wrong, because he had forgotten that the Stephens’ judgement, over which he had presided, did not concern bail. The error, Dr Debono said, was evident to both layman and lawyer and quite unexpected and surprising coming from annex-judge. He pointed out that, in his first contribution, Dr Bonello did not declare he was one of the presiding judges in the Stephens’ case. Did he think that no future court had the right to overrule his judgements, he asked. What Judge’s Bonello’s current contribution did, was prove his original one wrong and unfounded. He now had to beat about the bush to try to show that the cases might be similar, even if not identical, as he had

On legal points, but he did say that this right must be introduced. Once the AG was given the right to appeal, the accused must have this right.[225] In practice you have judicants not giving bail – not in bad faith, in good faith – as they say the AG would appeal, but they don’t worry about the accused appealing as he does not have this right. So there is an imbalance. Those famous scales of the balance lean to one side – which is not right!

Presented Cases Mr President, I now come to presented cases done in an unacceptable way. Let me put forward a scenario. If a person robs a tourist, he gives evidence as he would leave the next day or two. So the accused is given bail as the main witness has given evidence. But if the robbed person is Maltese, so the police may calmly ask him to give evidence, the accused gets no bail, and he is asked to give evidence a week later. This makes no sense and is one of the worst things in our criminal justice. It’s a big contradiction and I’ll say why. [226]

I listened to lawyer Joe Brincat, who has a certain experience, always saying that as much as possible the police must bring proof with the accused. So in the first session the witnesses must come, especially the main ones, for two reasons. Firstly if the police are worried that someone may influence witnesses, a remedy is possible: bring him at the presentation time. What’s the truth? It’s that a subtle system has developed avoiding forum shopping or else

originally stated. Dr Debono pointed out that bail and illegal arrest were not even similar technically. ‘They might seem similar to the layman but not from the legal point.’

[225] Private Members Motion 280 – Motion of Hon Michael Falzon and Hon Jose Herrera on Justice and Interior reforms [No confidence in Justice Minister C. Mifsud Bonnici] – Sitting 483 – Meeting 32 of 29 May 2013 during a discussion on Consolidation of Criminal law. Hon Franco Debono stated repeatedly that the appeal from bail: ‘Regarding radical reform in criminal procedure I wish to also say: I am trying to make it myself in Committee. What he failed to do, I am doing myself, with the Committee’s limited means. I will not forget the matter of bail. It’s a classical case of how amendments are made. I mentioned that the Chief Justice and the AG were like lovers, but he intervened with magistrates on inquests on ministers, to stop them. This was under the management of Minister Carm Mifsud Bonnici. The bail appeal was introduced. If you want bail, the AG will appeal and consequently there were magistrates – if you work in court you know - says he won’t give him bail, appealing to AG. But the accused could not appeal. Vanni Bonello wrote, and I respect him, a brilliant legal mind – but be careful as they drive you into the wall – and to defend them, he ended up quoting his sentence wrongly! I did not expect it of him! But my respect for him does not change. Into the wall! Defending them by quoting wrongly his own sentence! Such an important judge! Apart from having previously said that if we gave this right to the prosecution, we give it also to the accused. So what’s happening now? If you get bail from the magistrate’s court you may appeal, but not at Criminal Court. It’s because amendments are introduced by fits and starts. A knee-jerk reaction. I think he has people getting quick bail, a knee-jerk reaction, addressing only this case. With no vision!’

[226] ‘Lawyer MPs call for a radical reform of arraignment procedure,’ Times of Malta 22 Aug 2011 – ‘nationalist MP Franco Debono, backed by Labour MP Jose Herrera made the call during court proceedings against Conrad Axisa, arraigned under arrest and accused of money laundering and drug trafficking. Dr Debono said the code needed radical reform and the minister responsible ‘should wake up’. Among them, he said, was the procedure of how arraignments were made, with the current application of the law being ‘totally incorrect.’ In such a small island, it should not be difficult for witnesses to be summoned at this stage, thus avoiding needless remand.’

74 That the inspector knows that there is a certain duty magistrate and takes the case before him due to forum shopping.

So, due to forum shopping we ended up with many people arrested for a week, two weeks and then they get probation or a suspended sentence if not freed, after spending a week in prison as the inspector did not bring the witnesses at case presentation. Mr President the case presentation system needs radical change[227] when persons are arraigned for the first time in court. It’s a wrong system doing daily injustices. It must change. Witnesses must as much as possible be brought at case presentation. If a person stole and is arraigned, who happens to be there! Apart from the fact that today magistrates are doing a day of duty which reduced the problem.

Praxis during a Jury [228] Let me now come to a rarely mentioned matter, though I am sure Hon Herrera will agree with me. Our system allows provisional freedom until the first jury day, called ‘piede libero’ i.e. you go to court, the jury is chosen and at noon during mid-day break, you go to prison – which I never understood. It’s another silly thing, stupid in our system! Let me

[227] General Estimates 2012-Votes of the Justice and Interior Minister-Sitting 421-Malta Parliament- 2 Dec 2011 – Hon Debono referred to another matter needing reform – ‘And then there are the presented cases. Another one! These are in the Police discretion. For example a person hits someone and the police arraign him in arrest while another person gets a citation for the same act. If the arrested person gets no bail, he goes to prison and the sentence mentions Police discretion. It’s a bad system. I’m not saying that intentional abuse does not take place, as the police use their discretion, but it’s wrong. Guidelines are needed for when a person is arraigned under arrest or citation. There are sometimes cases of drug trafficking arraigned under citation and less serious ones under arrest. If one comes across a magistrate who denies bail, the person ends up in prison – which is wrong. Lots of discretion in justice is wrong, whoever has it. So criminal law needs reform.’

[228] Votes of Justice and Internal Ministry. - Sitting 56 Malta Parliament – 18 Nov 2008. New MP Hon Debono said spoke of jury in the present system in the choice of jury. ‘I wish to mention another part of the judicial system, especially in criminal law, where there is a jury. I had researched this system – indeed I planned an adjournment about it if I have the opportunity – occasionally during a controversial jury, debate arises as to the possibility of reform of the jury system. One must discuss this system. For example if the judge should join the jury or should they stay on their own; what’s sure is that reform is necessary. I regret that the choice of jury needs reform as it was never done; at least I never heard it being debated. The stage of jury selection is anachronistic. The time has come to examine what’s done in other countries, with regards to legal regimes in choice of jury. A radical overhaul of the system is necessary. At present Our system does not provide for an early stage of jury selection. This leads to lack of transparency in the list of persons and thus to a lack of impartiality. Each choice system must have impartiality as a point of departure. Our present system is approximate and my give rise to partiality. Apart from this, our system does not include the procedure to use in collecting information for the choice of jury. We must today involve local councils, as in other countries, to compile an original list of jury members. I don’t wish to take longer on this subject as I need to talk about other matters, but my point is to analyse the system of compilation of jury lists which perhaps needs amendment.’ 75 say why. One is arraigned three or four years before, and given freedom from arrest, and you always obeyed this freedom, you never went to prison, the jry arrived and suddenly you go to prison. This is a ridiculous syste!

As a lawyer, you always note these things without being able to do anything. But the advantage of being an MP is that you can discuss these matters at the highest institution of the country. When I asked why this happens, I was told that the praxis is that a person is kept in arrest when a jury starts, as an accused may go to the first sitting and then discontinues, with the jury coming in vain. It’s good that he is kept, but there was before a room in court where he was kept. I don’t remember this but Hon Jose Herrera does. A place is needed in court for this purpose but not in prison, as one may be freed after all. So you may be freed, get a suspended sentence, probation or a fine and your only week in prison is during a jury. What is this?! The system is ridiculous. During the break and in the evening at 6 00 when we finish, you are taken to prison. Let’s organise the place in court for this purpose.

I agree that you remain arrested as, if you are sent home without coming back on the morrow, you will disturb the whole system, but not that you go to prison as the system says so. Things degenerate without anybody caring; nobody draws anybody’s attention and all end up in prison. And who was freed? One may spend three years with provisional freedom and the only week you do is in prison was during the jury. Why? It’s a bad system! I wish to speak for three hours about the system of cases presented and deferred. In the House Select Committee for the Re-Codification and Consolidation of Laws[229] we are changing part by part. For example, where it concerns conversion, it was Lm5 converted to one day in prison, and it’s now more. But in the case of detention, it did not increase. It makes no sense. Small things also need examination, putting the Criminal Code under observation, seeing all detail and doing a holistic amendment.

House Select Committee House Select Committee [Re-codificatioin and Consolidation of Laws] – 11th Parliament - Malta Parliament – Meeting 32 – of 23 may 2012 Hon Chauirman Dr Franco Debono – meeting 1 of 10th March 2010, meeting 2 of 29 march 2010, meeting 6 of 28 April 2010, there was a report on the process of R-Codification of Malta laws including laws related to criminal cases. In the meeting 20 of 11 July 2011, meeting 32 of 23 May 2012, meeting 33 of 28 May 2012, there was discussion on the Consolidation of Criminal laws. Among the distinguished guests with the Chairman and members Jose Herrera and Francis Zammit Dimech, there were Dr peter Grech [AG], Dr Donatella Frendo Dimech, Dr Michael Sciriha, Dr Vanni Bruno, Dr Stefano Filletti, Dr Vince Galea, Mr Joh Rizzo, Dr Simon Micallef Stafrace, Dr Vince Micallef, Dr Veronique Dalli, Dr Ramona Frendo, Dr lara lanfranco, mr brian Zammit, Mr Joseph Sacco [Director of Criminal Court], Mr Abraham Zammit, Dr Janice Abdilla and Mr Natalino Attard from Probation Services.

9. Revision and Reform of the Office of the Lawyer for Legal Aid, so one may be assured that not having funds for legal costs related to a private layer has a guarantee of defence safeguarded by the constitution.

Let me come to the 9th point. ‘Revision and reform of the lawyer for Legal Aid, so one is sure that whoever has no means to hire a private lawyer would have the constitutional right to the adequate safeguard of constitutional right.’[230] let’s not forget that this legal aid matter is now a fundamental right[231] enforced by the European Convention and Constitution.[232] Dr Jose Herrera remembers that we had a system when I had just started court work, when due to abuse [234] of

[230] Franco Debono, ‘Vision for Justice’, Times of Malta. Sept 11, 2011. ‘Legal Aid structure must be re-examined.’ [231]’Constitutional case defies the legal aid system,’ inewsmalta.com 5th Feb 2014. This case is still sub judice today. ‘Lawyer Franco Debono presented a constitutional case, in the name of John Udagha Omeh, by which he is defying the legal aid system as it is today. Some years ago Omeh was accused of having , with others, brought drugs into Malta and had drugs in his possession which were not for his personal use exclusively. In a jury of Jan 2010 Omeh was found guilty of all accusations against him. He was condemned to 20 years in prison and a fine of Eur 70 000. The case presented today recognises that from his day of arrest, the accused was assisted by a legal aid lawyer. This is his right as per the European Convention and Constitution. But the situation is that an accused person may have lawyer from among ten on a specific list. These assist in various cases, civil and criminal. In this case, there is the argument that this ignored specific specialisations needed by the accused and the situation creates a prejudice against the same European Convention and Constitution. So lawyer Franco Debono is asking for Omeh to be given all remedies adequate and effective. The case was against the AG, the Police Commisioner, the Director General of Courts and the Court Registrar.’ [232] No confidence motion in government. Sitting 439 – Malta parliament – 25 Jan 2012. Hon Franco Debono insisted on a reform needed in the structure of legal aid in the observance of constitutional spirit.’ [233] Votes of Justice and Interior ministry – Sitting 56 – Malta parliament – 18 Nov 2008. Hon Debono presented a report on how the legal aid system after he graduated as lawyer and started court practice. ‘The legal aid matter was mentioned. I remember a time when all lawyers could be called to be legal aid lawyers. So lawyers tried to go to court and try to do some work. In fact magistrates asked them to do legal aid work when seeing them starting their career. When I became lawyer myself, this system had stopped and I was thus disadvantaged. One must however consider the historical perspective of why the old system was replaced by a new one. At the time, I had just started, learning from other experienced lawyers like Hon Jose Herrera, and I salute them from here. It was Minster Austin Gatt who had changed the system. I salute his important reforms in the administration of justice, but this was being abused. I think Hon Herrera remembers this abuse requiring it to be stopped. I believe the time has come to see if could review once more this system concerning legal aid lawyers.’ [234] Dr Debono also spoke of this subject and abuses made. In the votes of justice and Interior ministry – Sitting 273 – Malta parliament 4th Nov 2010 – Hon Debono said: ‘Luckily and satisfactorily I say that the problem in legal aid has today been addressed and solved. It may be that one has different ideas on the working of this system. The previous system stopped when I was about to get my warrant and I thus missed it; but I agree it was abused. There was at the time ten places for legal aid lawyer, and I think half of them were vacant; I was saying that the system could not work with vacant places. These place are now filled and I had already spoken and expressed

one lawyer whom I will not mention, we made a radical reform of the system in such a way that I am not the only one today to say that it does not satisfy the constitutional votes, [235] but it’s not even working. [236]

On the front page of The Times two days ago, there was ‘Legal aid system is in shambles’ [237] one can’t expect when a lawyer does a compilation on a homicide you pay him peanuts with legal aid, when he has other cases. It’s the lawyer who has a disadvantage, the client and also the system. [238] Here too, a recurrent theme

my satisfaction on this. One may discuss a change in the system here in parliament! And, a good product often emerges from a synthesis of many ideas. But I am satisfied with voids that have been filled.’ [235] Adjournment of Hon Franco Debono –Excerpt of Sitting 474 – Malta Parliament – 16 May 2012 – Hon Debono remarks that the institution of legal aid lawyer at present does not satisfy the constitutional vote:- ‘Mr President one also needs reform in the Legal Aid Office, or as known, the Poor People’s Lawyer, required by people not having the means. As it is today it does not conform to the constitution stating one has the right to a lawyer of his trust, even without means.’

[236] Hon Debono press release, House of Representatives, the Palace, Valletta 23 march 2009. In point 3, Hon Debono states, ‘I appeal to Justice Minister to urgently assure legal aid, used by persons without means for a private lawyer; it needs to be upgraded as many of these lawyers have resigned; they had been hired to give this service for various reasons, as well as an examination of the system, as its present version does not function well, and does not adequately fulfil the constitutional right for proceedings, in the spirit of the law.’ ‘Bernard Borg. ‘legal aid system in shambles’ I was told: it’s how things happen here’, Times of Malta, 11 June 2012. ‘I never met my lawyer,’ Mr Mula said. ‘He was assigned to me at my first court hearing, but I know no more about him,’ At a court hearing last February, a man claiming to be his legal representative told him his case was being transferred to criminal court and a different lawyer. He wouldn’t even tell me his name. I told him: I’ve never seen you, never met you and now you tell me you are passing me to another lawyer? What sort of justice is this?’

[238] Bill to emend the Probation Act – Bill no. 40 – Sitting 203 Malta Parliament 22 March 2010 – Hon Debono insisted there must be reform in the office of the legal aid lawyer. ‘I wished to refer to the legal aid matter. I was among the first in parliament to speak of this matter. A number of lawyers were doing legal aid but resigned. I am not saying this as criticism but as a member of parliament’s role must be also to see what reform is necessary and mentions it. One does not find it easy to mention all good things done by Minister Carm Mifsud Bonnici in this legislature, but it does not mean that raising one issue needs mention all previous good things done by this minister.

I have spoken about other matters needing reform before, so I shall also speak of this situation needing reform. The legal aid lawyer is an important matter as unfortunately it is used by people without means for a private lawyer. I must express satisfaction at the reform of this matter. When one speaks, it’s not just to say something. I personally do it – like many on both sides of the house – to contribute to a betterment of things. One might ask: does the present situation not require reform? In life there’s always need for change and we must observe what needs to be changed even by looking beyond our shores’.

In Sitting 204 of the morrow, 23rd March 2010, Hon Debono continued his speech by referring to the fact that vacant lawyer positions were filled in, after calls for applications were issued without positive results, making the system work better.

78 in this speech, not the individual’s fault but the system’s.[239]. Regarding this, I spoke to the minister and we started working together. There was still Minister Austin Gatt at the time, as a reaction to a lawyer’s possible abuse. But we need not go from one extreme to the other creating confusion. It’s a fundamental point. [240]

Mr President, a statement by a person of no means must not be on oath, binding, and if it results that he has means, he has to face the music, It’s a safeguard avoiding abuse by both lawyers and accused. But all agree [241] as in The Times that the legal aid system is in shambles.[242] it’s an aid to the weak person, the weak.[243] as he who has no means, what

[239] Bill to emend the Probation Act – Bill no. 34 – Sitting 187 Malta Parliament 22 March 2010 – Hon Debono clarified: ‘Re legal aid, known as poor man’s lawyer, there was recently a problem when a number of lawyers in this system resigned. I appreciate the Minister telling me that a selection board is set up with the process advancing and a number of lawyers are being appointed. I often spoke about this, expressing my preoccupation about people with no means to hire a private lawyer. It’s a fundamental right to hire a lawyer, and this is being addressed. Apart from here, I also speak to Justice Minister to contribute to these matters. I wish to quote from an interview with the Deputy Prime Minister saying that when one has persons – and he mentioned me – telling you about shortcomings, this is not done to shut somebody up but to do the right thing. Re legal aid, there were shortcomings, as I was informed by Justice Minister, and this is being addressed. I appreciate this, as one talks to solve issues needing solutions, not just to talk.’

[240] Private Members Motion 280 – Motion of Hon Michael Falzon and Hon Jose Herrera on Justice and Interior reforms [No confidence in Justice Minister C. Mifsud Bonnici] – Sitting 483 – of 29 May 2012 where Hon Debono emphasised: ‘Mr President, I have been 12 years in those corridors and all know that I have been active in legal aid matters. Present here is Minister Austin Gatt who knows this well and he has worked on this as a reaction. A particular lawyer was abusing but, as it is today, it’s wrong. Legasl aid lawyers are poorly paid, and a disservice is done to the accused. It’s wrong!

[241] So much that a reform is needed in legal aid matters, shared by the Foundation From Darknbess to Light which made recommendations before the last elections. Foundation From Darkness to Light, ‘memorandum related to General Elections of 2013: Point 19, ‘The Legal Aid System’. This system needs reform. It makes no sense that when a person has more than one case,, ha a different lawyer for each one. As abroad, we must introduce to Malta, the system whereby an accused with no means, chooses himself a lawyer he trusts, not from a limited list. I propose that each lawyer in this case, gives a report of what he has done.’ [242] Bertrant Borg, ‘legal aid system is in shambles.’ I was told that ‘s how things are here.’. Times of Malta 11 June 2012, ‘Mr Mufa’s experience is symptomatic of the legal aid system, according to Foundation From Darkness to Light director George Busuttil. ‘it’s broken. It’s a shambles and creating a two-tiers justice system. Those affording a lawyer get a good shot at justice. Other’s can’t.’

[243] General estimates 2012 – Votes of Justice and home Ministry – Sitting 421 – Malta parliament 2 Dec 2011 – Hon Debono called again for reform in the legal aid system that’s inadequate – ‘Today’s legal aid system used by the poor chap having no means for a private lawyer, is not well used and needs reform.’

79 Can he do? [244] Even from a civil aspect, as Hon Dr Herrera is remarking. I don’t doubt that Hon Michael Falzon as well will comment on these matters with which they are familiar.

1.1 Revision of the number of years and experience required for judicants, as well as a holistic procedure of selection, and the retirement age, as well as the conditions of work of judicants; [Point 10 to be addressed later at p. 105]

Nomination of Judicants and retirement age.

I shall skip point 10, Reform of Family law which I will address later, as I will remain in possession next sitting – to deal with point 11 of my speech [245] revision of the number of years and experied needed for judicants, as well as the procedure of selection, retirement age which I have said must be 68 as well as the judicants’ work conditions’ [246].Let me briefly make a parenthesis. I have taken certain stands

[244] Select Committee [Re-codification and Consolidation of Laws] Malta parliament – 11th parliament – meeting 19 of 28 June 2011, presided by Hon Chairman Franco Debono on Enforcement of Right of legal Aid to the Arrested. An interesting point arising was legal assistance to arrested persons. During the speech, it was mentioned that foreign systems have the right to legal aid of lawyers meeting the police and giving advice.In malta so far, legal aid exists only regarding the magistrates’ Court, before the criminal court and some aspects of civil court. In 1981 the expense for legal aid in police stations was higher than in courts. It’s at this difficult moment that an accused needs legal assistance pending process, having family or friends’ help, and until his arraignment he has funds for lawyer’s help. But at the stage of arrest, the arrested has no means, at the stage of arrest, i.e. when the police arrest him – there he surely has no means available to hire whom he wants. During the meeting, it was proposed to have a legal aid system only to give advice at the police station. As this legal aid matter does not exist, in practice, the police were inviting lawyers who were on duty in court. So the police learned who was on duty and called him to come. But to be precise, one must see what work a legal aid lawyer must do and this is not included. Thus a legal aid lawyer may say he is not on duty and does not go to the police station, saying it’s not part of his work.

[235] Adjournment on House Permanent Order 13 – Discussion on the purchase or hireing of St Philipp’s Hospital by Government. Excerpt of Sitting 508 – Malta Parliament – 15 October 2012 – Hon Debono remarks, referring to point 11, of his private Motion dealing with the judiciary, stated that, since he’s been Justice and Interior Minister, Hon Carm Mifsud Bonnici, nominated by the PM, did not do it. I had to be the one putting it on the parliamentary agenda. And what did he do about this? He condemned me and gave it to Hon Chris Said. That’s how Gov. behaves! And the same goes for what we are discussing today, making me start this analogy. The no-confidence speech in the Gov of GonziPN, I did in Jan I may repeat eat exactly today. At that time I said I had no confidence in government, making a step back to give them some chance. But I regret that things have actually degenerated. We ended up with a coalition government with Hon Pullicino Orlando who raised very valid points in this legislature, and things regress instead of progressing!

[246] Franco Debono: ‘Visions for Justice’ Times of malta, Sept 11 2011. Dr Debono spoke on the appointment and conditions of the judiciary. ‘Judges and Magistrates’ retirement age and the years of

80 these last months, and some call you bold, others disagree, and others agree. With all respect, when you are used to appearing before judges like Galea Debono, you have to become bold. Why do I mention Judge Galea Debono?

MR SPEAKER. It’s time; I understand that you will remain in possession.

HON FRANCO DEBONO. If you allow me, I finish this, to close this parenthesis. I mention Judge Galea Debono, as I mention the retirement age, losing some of the best judicants in their prime [247] and, today there are many retired judges, they are in their prime. [248] When a judicant is 65, 66. 67 years old, that is his best. We lost them! [249]. The age of retirement, the conditions of work!...[250]

Sitting 491 19 June 2012 MR SPEAKER: Hon Franco Debono has the floor and spoke for 88 minutes.

experience required for appointment, should be raised, Better working conditions, such as pay, pension and the new chambers being built, more technical staff, could attract the best candidates.’

[247] Select Committee [Re-codification and Consolidation of Laws] Malta parliament – 11th parliament – meeting 23 of 28 June 2011, presided by Hon Chairman Franco Debono said: ‘Many times I spoke in my private motion on justice reform, claiming that required experience must increase. Seven years as lawyer, does not make you a good magistrate. Both this and 12 years to be judge must increase. Retirement age must increase too; thus appointments need more experience and retirement coming later. 60 years for magistrates and 65 years for Judges must increase. In some countries this is 68 and 70 years. We lost some of our best Judges as Filletti, Camilleri and Galea Debono in their prime. And today you see them some years later still in their peak. A judicant’s augmented experience gives a wealth accumulated with great results….’

[248] ] Votes of Justice and Interior ministry – Sitting 56 – Malta parliament – 18 Nov 2008. Hon Debono, since his first MP year, proposed that retirement age must increase. ‘The retirement age for judicants. Aperson accumulates experience with time. So one must consider the continuing of service given after age 65.’

[249] Votes of Justice and Interior ministry – Sitting 273 – Malta parliament – 4 Nov 2010. Hon Debono, regarding retirement age of judicants should increase. This had been increased and it’s again time to increase it. Some retired judicants are in their prime. These have valuable experience and knowledge of the law is not enough. Wisdom comes first, allowing you to distinguish between two witnesses who is telling the truth. You may know plenty of law, but the experience of life is wisdom…This attribute increases with time, and with time one hears evidence and gives sentences, cultivating this wisdom. Thus I believe that we must utilise the fact that a person has occupied the role of judicant for a number of years, thus accumulating a vast experience over years.’

[250] Bill on Collective Proceedings – Bill 102 – Sitting 455 – Malta Parlament – 7 March 2012 – Hon Debono expressed himself repeatedly in and out of parliament: ‘Malta’s Justice system needs various reforms. It includes reforms on judge’s nomination, i.e. how to nominate a magistrate or judge; we are also discussing this in the Committee on Re-codification and Consolidation of laws –a fundamental reform needed in justice. There is also the retirement age – and important matter. These are constitutional reforms while others are less important but important still.

HON FRANCO DEBONO: Thank you, Mr President. I will continue what I had started in the sitting of last Wednesday when I spoke of the 24 points I presented at parliament on 8 November 2011. They were 22 points to which I added 2 other points amending the same motion. I also explained general points forming a wider scope clarifying the 24 points I will elaborate upon – each of which consisting of a major justice and interior reform.

A separation in the ministry of justice and the interior.

I remind the need to separate justice and the interior. [251] We were among the few countries in the EU [252] with a fusion of justice and home affairs leading to conflicts between the two sectors. It was maybe a main reason why both sectors were not in a good shape. [253] As I was saying,

[251] Franco Debono made a continuous campaign leading to the separation of justice and the interior in January of 2012, However, considering how this separation was made, he showed scepticism and reservations- ‘Debono – The Ministry was split the wrong way – MP silent on voting intentions – ‘there are no pending votes before Parliament ‘ Times ofmalta.com 23 April 2012.

Nationalist MP Franco Debono said this morning that he disagreed with the way the Ministry of Justice and Interior had been split because the AG had been placed within the Ministry of Justice instead of Home Affairs. Speaking to timesofmalta.com, Franco Debono, who had insisted on the division of the ministry, said that the reason for this division was to separate the judicial from the prosecution and to reinforce the concept of the independence of the judiciary. The buk of the AG’s work was of public prosecutor and thus, to reinforce the independence of the judicial system, the AG’s office should have been placed within the interior ministry, which is also responsible for the police, he said’.

This split also led to the famous reshuffle of jan 2012. Lawyer Franco Debono had released these comments: Karl Stagno Navarro, ‘Gonzi says reshuffle ‘in national interest’, Franco Debono withdraws support’ Malta Today, 6th January 2012 – nationalist backbencher Franco Debono said that the new reshuffle that promoted his secretaries to Ministers, was a reshuffle ‘within the ruling clique’ of Gonzi’s government. Although he was saying that he was pleased with the split of the ministry of justice and home affairs, which had come largely due to his demands, Debono was disdainful of the shuffle itself. ‘If this is the ruling clique, I won’t support government. I want to live in a democracy not an oligarchy,’ he told Malta Today.’

[252] Franco Debono in a new swipe at Gonzi, presents motion on justice to House., Malta Today, 8 Nov 2011, ‘He hints by saying that in 24 out of27 EU countries member states, these ministries are separate and states that as things are in Malta, both justice and home affairs ministries are in dire need of urgent reforms.’

[252] No confidence vote in government – Sitting 439 – Malta Parliament – 25 january 2012 – Hon Debono insisted: ‘I wish to clarify that when the court examines a Minister’s action, in view of the separation of powers, the court is not trying to help- government each time it is on one leg, God forbid – but the courts as the citizen’s shield, have the constitutional government’s action, censure it and condemn it when necessary and even declare this parliament’s law null and void when it goes against the Constitution.

The courts have the right to even annul a Minister’s decision when necessary without aiding it. That’s why it was important that the Ministry of justice and the Interior must be separate; indeed I had spoken in a way that led to this important development in our country, bringing us in line with many European countries and also the portfolios on a European Commission basis. The Commission has a justice portfolio and the interior which can’t go together, as I have mentioned. Thus I have been saying that it’s important to review seriously how the Justice Minister, now separate from

82 One can say that each point constitutes a major reform in itself. The way of nominating, work conditions, and the retirement age of judicants, a redefinition of powers and the AG’s role in our system, the separation of roles between an investigative magistrate and magistrates judging, reforms in drug laws and the Commission for the Administration of Justice and the setting up of a supreme court and the jury system, though all important points in one motion, in themselves constitute major reforms in the sectors of justice and home affairs.

In fact, the first part of my speech in the previous sitting, I mentioned how general statistics can mislead. To have a clear and faithful picture of these matters, one cannot rest on statistics only. Statistics give only indications, but one must be on the ground and know what’s happening in the court corridors and halls, in prison, t police HQ and AG’s office to have a correct picture of what’s really happening or not, and the lacks therein.

I also explained, and I repeat, how some of these points, from when I presented the motion, including the nomination of magistrates and judges, [254] sometimes they are debated in local media, but they were never treated seriously in parliament. Some people complain that courts take long to emit a sentence or that the sentence was different from that expected. There are sometimes lacks and sometimes not, but obviously the way judicants are nominated [255], the

the Interior Ministry, whoever is separated, is judged by the courts. We must also see how the nomination of judicants is done by the Minister who eventually together with the cabinet of his colleagues will be judged by the same judicants. More transparency is needed not here only. I hope there is no sieve whose sieve one must pass through to become a judicant or for a magistrate to become judge.’

[254] Votes of Justice and Interior ministry – Sitting 273 – Malta parliament – 4 Nov 2010. Hon Debono discussed the eligibility and age in the nomination of judicants. ‘Let’s not forget that the courts are not of law but also of justice, i.e. justice is wider than the law. Thus it is sensitive and persons must be found to be adequate for it. Here I wish to praise the work of our judicants who generally do good work with wisdom and seriousness. I also mentioned the age of nomination. We only have about 30 judicants in our country including magistrates and judges, and the time has come for the period required for nomination of a magistrate to go up from 7 years to 10 or 12 and for judges from 12 years to 15. Let’s not forget that a judicant must decide on his own and according to law, and thus we must revise the number of years of experience needed for one to be nominated judicant. From there, we must consider not the age of retirement, i.e. from the latter part, but from the former part, when a nomination is made. The latest nominations made recently were good and I praise them.’

[255] Votes of Justice and Interior ministry – Sitting 56 – Malta parliament – 18 Nov 2008. Hon Debono discussed the eligibility of the judicant from his first year in parliament .

‘One must be careful about nominations to certain roles, as for example those of magistrates and judges, must not be based on academic qualifications, but also on the level of maturity making it necessary for such an important role. Indeed Hon Herrera also said that one is giving to this person the right of decision on the rights and freedoms of our people. Thus, when we do such nominations we must not just look at the age of retirement – I am not saying there must be a specific age in law – but we must see that this aspect is respected.

Magistrates and judges count, as it is important to have a motivated judicants’ corps. These have important responsibilities. Their salary and conditions of work must reflect this [256] so they carry out their responsibilities, as well as modifying their age of retirement. [257] Here I wish to make another point.

I read on online media, that a person was injured while being arrested by a policeman in Sliema way back in 1995 and was given a compensation of Eur33,878. I mention this case as it’s a point that has been mentioned, though I have not had the opportunity to see the sentence. Even in court, mention was made on whether the police were adequately prepared for such an eventuality of arrest. It seems that this person was also in danger of death. I had no time to read the details, but it is obvious that the police needs equipment and human resources – this applies to many sectors mentioned in the motion – as well as the mentality and attitude in certain areas. [258]

Mr President, one of my points is that the Police Corps, these last 10 years

I now come to the frustration of some judicants. I believe that when a judicant has been fulfilling his role with a certain ability, he must not be skipped in nomination. The matter of legal aid was also mentioned. I remember a time when all lawyers could have been called as legal aid lawyers. So lawyers went to court and did their best to do some work. Also magistrates asked them to do some work of legal aid at the start of their legal career. This system ended when I was about to become lawyer and I had a disadvantage. One must also understand the historical perspective. As the system was removed and replaced.’

[256] Votes of Justice and Interior ministry – Sitting 273 – Malta parliament – 4 Nov 2010. Hon Debono discussed the amelioration of judicants’ work conditions. ‘Mr president, I wish to end on a point related to judicants’ need for improved working conditions as they have a great responsibility and, apart from a better salary, they need more staff. The time has come for them to have judicial assistants to help them in their work – which requires a financial investment. They do not at present have a technical staff. This must improve. Thank you.’

[257] Franco Debono. ‘Essential Legal and Administrative Reforms’ Times of malta, oct 12 2011 ‘Considering life expectancy and the fact that we have lost a number of good judges at 65, the retirement age should be raised too, following the example of other advanced legal jurisdictions. Legal reforms must not only include better salaries and pensions for judges and magistrates, maybe no longer pegged to the civil service, but better working conditions and environment, equipment, research technical staff for judicial work. Calls by the judiciary for better working conditions and appeals by the public for more accountability have been forthcoming for years and the matter should have been addressed years ago.’

[258] Bill implementing estimate measures. – Sitting 185 – Malta parliament – 26 Jan 2010. Hon Debono clarified and once more insisted: ‘In my first parliamentary speech I mentioned the electoral promise, that we need a DNA apparatus. It’s very important that this is within the police work’s central and fundamental need for the good of society’s order. We today are suffering for things that should have been done previously – and this is not a simple matter of nostalgia. This country has done progress, but there is much more to be done which should have been done in the past without procrastination. Today, for example, police cases are solved by means of forensic equipment. Some people know they don’t need a lawyer and still they don’t admit their guilt, thus not talking to the police following legal advice. In any case, the police have a good, adequate weapon. Firstly, the best weapon the police has is human resources as I believe that under Commissioner John Rizzo these last years, the corps was motivated, seriously making us proud; let’s improve it.’

84 did great progress, but one must continue developing with the times.[259] I suggested the creation of a task force [260] – years ago there was one director by Mr Spiteri Gingell – in the Police Corps to check these things. I call for the re-creation of this task force, stocktake in the Police Force, and the existence of a strategy and planning unit in the Police Corps. To my knowledge, this is totally absent. I am calling for the Police Corps to be creative not reactive, for example waiting for an injury to realise there are no taser guns.[261] Today, even from Parliamentary

[259] Votes of Justice and Interior ministry – Sitting 16 2– Malta Parliament – 4 Nov 2010. Hon Debono appealed for the amelioration of tools and equipment in the Police Force:- Mr President, the Police Force needs a decent forensic lab for its work; I get complaints that this is inexistent. How do we expect the police to work if they do miracles with what they have? We need here great reforms as far as criminal justice is concerned. We must also address the issue of distinguishing between an investigating and an adjudicating magistrate. You cannot possible do an inquest with an inspector on a person, with the latter getting a sentence before the same magistrate. How can you, if you are human? How can we expect this from our judicants? There must be a distinction.

And this is within my previously mentioned appeal for a decent forensic lab. The Police Corps today enjoys the respect of the Maltese people, and it has done great progress, but let’s not say that since some things in the 80s were not done well, and these have improved, that we must now sit ignorant of reforms needed. We need urgent vision for criminal justice. We need a state of the art forensic lab so the police have effective equipment. The use of the right for a lawyer during interrogation is linked to the needs of the police to also be able to fulfil their functions linked to their investigations – their main function. In today’s situation, I have no problem saying that the police enjoy respect of the Maltese citizen, but we cannot possibly fold our arms and deny that abuses are possible by individuals shedding bad light on the corps.’

[260 Committee to propose reforms to the Police Corps – Debono welcomes announcement, Times of Malta July 12 2012.- Exactly a month after, Hon Debono’s motion started being discussed including the creation of a committee to reform things in the Police Corps, the PM stated he would create such a Committee. This is another of Hon Debono’s suggestions to be effected.

‘The government is setting up a committee to examine reforms required in the Police Force, the PM announced today. He was speaking as Minister of the Interior when he presided over a Police Day award ceremony at Police HQ. Dr Gonzi said the committee will come up with a blueprint for reform of the Force in line with requirements. In this way the country would be better prepared to deal with sophisticated criminals. The reform would also insure closer contact between the community and the police and the latter would be in a better position to protect the vulnerable. It would also suggest ways how the police could be more satisfied in their work. In a reaction, PN MP Franco Debono welcomed the PM’s announcement. He said that reform of the police force had to be one of the points of a private member’s motion currently discussed in parliament. He recalled that, while speaking in parliament, he had suggested a task force to discuss police reform. Alternatively he suggested that the Strategy and Planning Unit in the Police Force should be reconstituted. Dr Debono said that his please for reform had been heeded.’

[261] Private Members Motion 280 – Motion of Hon Michael Falzon and Hon Jose Herrera on Justice and Interior reforms [No confidence in Justice Minister C. Mifsud Bonnici] – Sitting 483 – Malta Parliament of 29 May 2012 where Hon Debono emphasised: ‘Some years ago, as the Minister had not given to the Commissioner of Police the taser guns, a person was killed during arrest. Now, let’s be clear, I have faith in the Chief justice, the Commissioner of Police and the AG, all of them and I say this without difficulty, but if the Police Corps has taser guns or not, it’s not to be done by the commissionr. With his resources, the Commissioner is making miracles.

85 questions[262] I made myself, it results there are not enough taser guns as well as other equipment, the PM announced today. I have no time to go into detail regarding this, but one must propose a task force or similar structure fulfilling the needs of strategy and planning in the Police Corps; this structure would examine in detail what needs to be done on a regular basis.

Before coming back to the 11th point, of the motion, I want to add two points on the nomination of Judges. First I appreciate that both Hon Francis Zammit Dimech [263] as well as Dr J Pullicion orlando said something quite relevant i.e. it would have been better if this 8 Nov motion, a month before the censure of the opposition, were debated before. [264] I like hearing this lack addressed, i.e. the motion presented by the opposition a month after I presented mine, came up for discussion before my motion. I cannot understand

[262]PQ no. 34351, Malta parliament, Hon Franco Debono asked Interior and Parliamentary Affirs Minister how many taser guns the Police Corps has and which section uses them. 8/5/2012. Hon Carm mifsud Bonnici is informed that the have 31 taser guns. These are in specialised sections. Sitting 472 – 14/05/12. PQ 34617 Malta Parliament, Hon Franco Debono asked the Minister again on taser guns i.e. if more taser guns will be bought for the police corps. He also asked about how are the limited amount available are used by the Police Corps. 16/05/2012. Hon C mifsud Bonnici is informed that more taser guns will be added for use by the Police Corps. Criteria for their use are stipulated in circulars emitted on 23 Sept 2008 and 22 jan 2009. Sitting477 – 23/5/2012. [263] ‘Zammit Dimech says government could have avoided minister’s resignation – Foreign and European Affairs committee chairman Hon F Zammit Dimech says a motion by Hon Franco Debono could have been sooner and chaos avoided.’ Malta Today 2 June 2012.

‘In an interview with Sunday newspaper Illum, PN MP Francis Zammit Dimech says the Minister Carm Mifsud Bonnici’s resignation could have been avoided. ‘I believe that it could have been a completely different story had Franco Debono’s motion been put forward for discussion in Parliament prior to the motion submitted by the Opposition,’ Zammit Dimech says.’

[264] Confidence Motion in Government 309 - Sitting 486 – Malta Parliament – 4 June 2012 – Hon Franco Debono said: ‘Comments were made here even yesterday, by Hon Charlo Bonnici, my colleague here. I also saw comments by Hon F Zammit Dimech, among which I appreciated: Perhaps had we brought Franco Debono’s motion before..You had a situation where the leader of the house, Hon Carm Mifsud Bonnici, brought forward the Opposition’s motion before the government’s, when that person, I, presented the motion a month before. I don’t say I deserve priority, but at least as per order! Hon Francis Zammit Dimech made that comment. Regarding Hon Charlo Bonnici I wish to say that during last election, he got 670 votes and I 2,065. We talk of teamwork.’ In the adjournment of the House, under Permanent Order 13 – Discussion on aquisition, by purchase or hire of St Philip’s Hospital by government – Sitting 508Malta Parliament 15 October 2012 Hon Debono asked:

‘Mr President, one might ask why PM or government, objected to the discussion of my motion but not of the Opposition to discuss their motion this evening. He who is not familiar with these things is confused! And this was done to me many times. In fact, my motion on justice, to which I just referred, was presented before that of the Opposition, but that of the Opposition was brought up before mine. All this is relevant to what may happen later. Thus this debate is held today, whilebut not mine, as government is scared of votes. Regarding what we are doing today, there are no votes. We shall chat, and this is good, but getting nowhere. Like a bridge to nowhere! And the PM rose to speak magnanimously, saying he had no difficulty discussing this subject. I say this, so the people, to whom I always wished that Parliament is close to in many ways, understands why my motion was not discussed while then we show magnanimity where there is no vote.’

why or how. [265] The motion we are debating today should have been debated before the Opposition’s. [266] This motion we are debating should have come before the split of the Justice and Interior Ministry. The motion’s subject matter is directly related to the decision taken even way back in January, the famous reshuffle, as it seems that since then government has remained weak.

I perfectly agree both with Hon F Zammit Dimech and Hon Jeffrey Pullicion Orlando making the same point in the speech about this motion of censure by the Opposition. This motion asks for no censure of anyone, but has positive suggestions on justice and the interior and some after the motion, I insist, have already been done. Ultimately that’s the purpose of a motion, putting on the agenda these or previous points. I am working on others with my friend Hon Chris Said. Ultimately the purpose of this motion is that things are delivered.

While agreeing with what my two colleagues said, I wish to go beyond by saying that this should have been done before the slit between the ministry of justice and the interior, so one may know what are the points of reforms we are mentioning and secondly one may learn what the parliamentary group is trying to reform. I do indeed like to mention the right of meritocracy.

I wish to mention also the Forensic Lab [267]. In 2011, the Malta National Laboratory was disbanded and the scientists were move to the Malta Competition and Consumers Affairs Authority [MCCAA]. During these years many transfers were mad and the lab here few capital investment.[268] The only investment was the creation of the post of chairman and sometimes managers and

[265] Franco Debono, ‘Party democratic credentials.’ Times of Malta 30 June 2012, ‘More than three weeks after parliament exercised its supremacy and right to criticise the Administration and passed a verdict of no confidence in former Justice and Home Affairs Ministry…after various Nationalist MPs declared that my justice motion [presented a month before the Opposition’s], should have been debated prior to Labour’s and, after PM declared the chapter closed, like a bolt from the blue, the executive committee of the Nationalist Party issued a condemnation of me and 2 other MPs.’

[266] Franco Debono had many times appealed for a debate on his motion in Parliament and in view of this, insisted that Justice Minister must abstain from the Parliamentary Business Committee – ‘Debono: Ministry was split in the wrong way, MP silent on voting intentions – ‘There are no pending votes before Parliament,’ timesofmalta.com 23 April 2012.

‘He argued that parliament should debate pending private motions on justice as soon as possible, adding that justice minister should abstain from the House Business Committee until a debate was set.’

[267] Bill implementing measures of estimates – Bill 34 – Sitting 185 Malta Parliament – 26 Jan 2010 – Hon Franco Debono repeatedly insisted that the forensic lab must be reinforced – ‘I come now to another aspect related to the budget as this requires certain funds. There should be a strong investment regarding the forensic lab.’

[268] DNA testing: State or private?’ Timesofmalta.com 23 Sept 2013 – ‘A magistrate dealing recently with a case of rape was shocked to discover that Malta’s forensic lab does not have the equipment to analyse blood samples and establish DNA profiles – an essential modern aid to deciding

More equipment. It seems that one of the small investments happening in this lab was a scanning electron microscope whose guarantee stopped in 2008. It seems this apparatus was never upgraded and it’s now old – like so much apparata in this lab.’

Guilt or innocence in the case of rape. The director of the state lab, who for some reason, is responsible for the Malta Consumers and Competition Authority, said that it had been without such equipment for many years and needed both hardware and personnel.

Malta’s forensic lab has had a checkered history of 30 years. It has been in an advanced state of derilection since 2001 when the scientific functions falling under the police force were transferred to the Malta National Laboratory, Before that, the scientific testing of the forensic laboratory,, set up in 1981, was carried out in a section of the University of Malta, which had been taken over by the Police Forensic Lb. Matters reached their nadir in 2001, when the scientific section, including its personnel, was transferred to the national lab, where it languished and many of its scientists resigned. When the Malta National Lab was transferred to the MCCA – presumably, in a desperate attempt to find a bureaucratic home for it – and was renamed the Laboratory Services Directorate – it was meant to apply for national standards [ISO] certification, but this has never happened.

This sorry tale bears all the hallmarks of bureaucratic inertia, lack of ownership and proper accountability resulting in an important element of modern criminology being shifted from pillar to post, poorly managed and starved of funds. Consequently it is not fit for purpose. The new administration has now set in hand an operational review of the Competition and Consumer Affairs Authority and its labs.

The key question to be addressed is whether the forensic lab should be state-run or contracted out to the private sector. There are valid reasons for a forensic lab with fully accredited experts, staffed and paid for by the state. The nation would certainly benefit from having its own operational DNA lab. On the other hand there already exists a fully functioning and more importantly, fully accredited DNA lab in the private sector.

[269] Adjournments of Hon Franco Debono – Excert from Sitting 105 – Malta parliament 28 April 2009. Hon Debono spoke about the forensic aspect of the Police Corps and the National Lab. ‘ I think we should give direction to structure and way fo functioning of the national lab today. The national lab was set up seven years ago and s staffed by 10 people. I think it is understaffed. I think firstly that the national lab with a function so important, needs more people. There are well-trained, dedicated people, but understaffed. And concrete measure should increase its staff with a change of place. Historically, some years ago, due to constitutional cases, this lab was separated from the police corps and became autonomous, with a change of place. I am informed that the place today that carries out exams, is not adequate.. A decision is needed with direction to find a new place.

The lab has no room for exhibits. We refer to proof of a sensitive nature that must be conserved. We are signatories of the European Convention for Fundamental Human rights. These are not only for the protection of guilty people. God forbid! And this is why criminal procedure proves safeguards. The aim of the fundamental human rights is for each person to have minimal rights so their safeguards their basic rights against various injustices.

We sometimes hear of cases where persons – and this raises condemnation – who, due to misleading evidence are condemned in spite of innocence. If I had to mention a basic principle and a main reason, it’s to avoid cases of this nature. Rights are not there to protect he who committed a crime but so that persons are found guilty if they are guilty. Our legal system requires this reasoning regarding fundamental rights which we cherish. Let’s now talk about proof which must be conserved due to their sensitivity. I am informed that they do not exist. There may be staff that’s not sufficiently motivated to contribute in the investigations and practical ordinary work. This staff must be motivated.’

It also seems that the Occupational Health and Safety Authority went to inspect the national lab in San Gwann and the report shows serious lacks in all sectors. This report was not published. It seems that the private health and safety company went to the labs to do an audit for MCCAA, and the report says that, due to grave lacks in the lab, it must close immediately. The layout is bad, and material used fo cubicles is dangerous with no good air flow, no fire exits or fire extinguishers.

[270. Regarding DNA, some investment seems to have been done [271] but about this I was informed there are reservations and the apparata seems to be with the private company. The same company was nominated to for DN is the same doing profiles for the police. Questions arise: is there a law regulating this database? Who authorises the private company to do and keep the database? Let’s not forget that that of the DNA is very sensitive. DNA is part of an individual and obviouslyDNA info must be handled with great care. [272] There was even a case in the European Court of Strasbourg. [273] saying for example, a profile must not be kept more than so many years and kept only for specific aims. [274] This is obviously as we are talking

[270] Adjournment of Hon Franco Debono – Excerp from Sitting 461 – Malta Parliament 27 march 2012 – Hon Debono says: ‘It thus seems that the lab DNA of persons suspected is in an advanced stage. I think this is just not enough and the lab must be much more advanced. It is important that the Police Corps must be reinforced, and I express my faith in the present Commissioner who dis much work.’

[271] Private member’s Motion 280 – Motion of Hon Michael Falzon and Hon Jose Herrera on Reforms in the Jusitce and Interior Ministry [No confidence vote in Justice Minsiter Hon Carm Mifsud Bonnici] Sitting 483 – Malta Parliament 29 may 2012 –Hon Debono explained: ‘When it was to become the lawyer’s right, he told me to give him time to get the DNA apparatus. It seems this blessed apparatus arrived several weeks ago if not months. This, apart from the move towards intelligence policing which shows the way ahead – and not the getting of cars. That’s what people see, but indeed, entering the heart of the problem, cars are not the real importance. It is basic to have cars, as is obvious for the police, not to have non-working cars. You expect a well done? You should have brought them years ago’

[272] Adjournment of Hon Franco Debono – Excerp from Sitting 461 – Malta Parliament 27 march 2012 – Hon Franco Debono says: ‘ …. today, the police rest a lot on forensics. To give a concrete example, may I mention the taking of fingerprints as an element of proof linking a person to a crime. Taking DNA also links a person to a crime.’

[273] S and marper v. UK [2008] ECHR 1581. Application nos 30562/04 and 30566/04. Court [Grand Chamber] 04/12/2008.

[274] Adjournment of Hon Franco Debono – Excerp from Sitting 461 – Malta Parliament 27 march 2012 – Hon Debono says: about the European Court of Human Rights in Strasbourg during his Motin: ‘A recent sentence at ECHR on 4 Dec last year, concerns Michael marper – and some minor – whose name is nt mentioned but indicated as S. The European Court decided that the conservation of DNA samples of non-guilty persons breaches the fundamental human rights. In England you had a system where an arrested person even with no cour arraignment, is demanded samples of DNA which are kept in a database.

The European Court decided that this did not create a sufficient balance between the right of society to protect itself and the private rights of a person; thus the court decided that these could not be kept as this is not reasonably justified enough in a democratic society.’

89 of matters that are quite sensitive.Whos is authorising the transfer of DNA profiles fro a private company to the police database? Which DNA profiles are kept in the police database? Who is selecting among the various types? Which authority is seeing that the DNA profiles are deleted after some time permitted by law? One must examine the situation regarding the DNA.

Even in the Police Corps, there was a lot of progress. When the Forensic Science Lab was part of the Police Forensic Lab, the scene of the crime officers [SOCO] - another unit linking forensics to police [276] are today still police officers working

[275] House Select Committee [Recodification and Consolidation] of laws]Malta parliament – 11thParliament – Meeting 19 of 28 June 2011 where was discussed the strengthening of the right to legal aid to arrested persons without means. Hon Chairman, during the discussion on Police investigation, asked the Commissioner of Police Mr John Rizzo his opinion on forensics. The latter said ‘We introduced a number of instruments. Now we shall introduce DNA for the first time under the system PRU as database. We shall also strengthen our system on fingerprints.

Re EU funds, we shall bring a new IAFIS - a system conserving latents and all prints brought from the crime scene, as well as related suspects from EU funds,’ Chairman: ‘So we are strengthening the corps, right? Mr John Rizzo: ‘That’s right as this is linked to the EU countries. That is, with Schengen, with freedom of movement, today it does not mean that you deal only with crime committed in Malta but also outside Malta. Thus automatically you make use of the system, from the collection of finger prints in Europe and they use ours. So, as I speak, all EU countries are considered one country, as regards IAFIS. Let’s hope that within one year, this is operational. Also that the DNA system will be working.

Obviously, when one talks of forensic science, there are wide horizons today. One must tread carefully on these things. There was a time when the police had certain equipment, but following some sentences, e.g. Longino Aquilina etc – and even on some preceding sentences, it was decided to have a sort of split, between what’s analytic and what’s elevated from scenes of crime. This gave birth to the Forensic Dept of Police, much of which was analytic, was no longer under our watch and became part of Malta national Lab. We are now talking about lots of machinery we had such as the scanning electronic microscope, i.e. one that measures GSR, gunshot residue, and many instruments which were analysts but are no longer with us.

This means, when we speak of strengthening the corps, I don’t only mean the Police Corps, but also the same Malta national Lab, which today took over from the Police Corps regarding forensic equipment. It’s good to keep this in mind. Basically the Police invested in these three apparata recently. Other equipment needs to be bought. Particularly where DNA is concerned. This does miracles, not only concerning saliva and sweat, but many things. Here one must see their mechanism.

I remember cases, and some still ongoing, where persons refusing to undergo a DNA test, even the magistrate re-treated, Dr Debono and did not keep pressing. I think there must be a mechanism during an inquest and was ordered to do a DNA test or fingerprint, have to undergo DNA, no questions asked, but you know at least as much as I, that these have finished up – I don’t know how many – pending before a constitutional court, if I am not mistaken about this matter. I have colleagues who may speak [interruptions]. No, I appreciate your elaboration on this subject.’

[276] PQ, 27075 Malta Parliament – Hon Franco Debono asked Justice and Interior Minister in what consist s the forensic facilities of the police; there are these sections: Ballistics, photography, Fingerprinting, Scene of Crime and documentation known as national Document Examination

At the Police General HQ. This, when in every European country, SOCO, i.e. those officers going to the scene of crime are all independent of the police. One may say that these people preserve the scene of crime. If there is a theft, e.g., a hold up, a homicide or a drugs find, these are the same people going on the scene; thus many European countries SOCO officers are independent. I am saying this as it’s good for one to place everything in its perspective.

I said that unfortunately the Police Corps in the 80s, in Labour times, passed through ugly storms which I hope will never happen again in our country. [277] There were police officers who even went to prison after being found guilty on very serious matters. Even the Courts; you had a Constitutional Court that was not constituted. I.E. when we speak of the amendments one must put all in its historical perspective, of the historical perspective of a bad situation we had even under a Labour government before 1987; I repeat that I hope tis situation will never repeat itself. [278]

So I made a few points regarding the forensic aspect, and the police aspect which I had treated also in the first part of my speech. At the end of my speech, then, I started talking about the nomination of judicants. [279 You have types of reforms

Unit. I am also informed that preparations are being made for the introduction of the DNA system [Database Management System] and the change of the AFISI system [Automatic Fingerprints Identification System]. Sitting 373-27/6/2011. PQ 34530 Malta Parliament. Hon Franco Debono asks Justice and Interior Minister to state during the past 4 years, year by year what the investment was in to modernise equipment and facilities in forensics, even with EU funds. Sitting 478—22/5/2012.

[277] Adjournment of Hon Franco Debono – Excerp from Sitting 105 – Malta Parliament 28 April 2009 – Hon Debono says: about the Police Corps history:’The Police Corps has over the years made a lot of improvement. I feel that it has acquired credibility and public trust in serious discipline. The public is reassured that the corps can, in all its aspects, be trusted for the keeping of law and order. This has not always been the case. Some past episodes have dented the credibility. These belong to the past and today the Police Corps ejoys the trust of the whole population.’

[278] Bill implementing Measures and estimates – Bill 12 – Sitting 64 – Malta Parliament – Dec 2008 – Hon Debono emphasised: ‘I feel that the judicial and criminal system, especially with extensive amendments under the PN government, effected in 2002, brought us in line with advanced democratic systems. Let’s not forget that in the past there were unfortunate episodes not respecting the judicial system.

Thank God these episodes are behind us; we were sufficiently strong and serious to do amendments making sure these thing do not happen again. Indeed the Nationalist government in 1987 adhered to the European Convention of the Fundamental Human Rights. Thus one must remind that the big steps we did to obtain the freedom for the public to use its mind and feel trust in the judicial system of this country. We started early in our efforts but have arrived, Mr President. But let’s not take anything for granted and build on what we already have.’

[279] Dr Debono mentioned in parliament and publicly the reform in the system of judicants’ nomination; he was however sometimes a voice in the desert.Thankfully his persistence led to reform which was even repeated abroad.

91 in the justice sector which are major while there are types of amendments called ordinary legislation. Here we have had a 3rd reading of an amendment of the criminal code including increased gravity for some crimes but then you have amendments which I describe as major.

I was saying before the presentation of this motion, that judicants’ nomination is hardly mentioned [280]. What’s today’s reality? It’s that the nomination of a judicant exclusively depends on the decision of the minister.[281] 20 years ago the situation in many European states was that the

‘Greco urges overhaul in the system of appointing judges, says Malta lagging behind on party financing.’ The Malta Independent 24 June 2015. ‘ A report by the group of states against corruption [Greco] of the Council of Europe has criticised the current system used by the government to appoint judges, urged a review of the code of ethics for MPs and warned that the country is lagging behind on the issue of party financing. Greco’s 3rd evaluation report noted the recent scandals involving judges in the past years, which have somewhat tarnished the traditionally acknowledged sound reputation of the Maltese judicial system and have triggered a debate on integrity and accountability matters within the judiciary. ‘As a result, popular satisfaction with judges as a whole has never been so low.

There are certainly some shortcomings in the current system which could constitute problems in the future, and the opportunities which have not been exploited for ant-corruption purposes,’ it said. ‘More particularly, the system governing the appointment and discipline of judges is due for an overhaul with the overall aim of instilling greater transparency and independence in processes of this type; this would additionally help to clarify public expectations about the qualities and standards of behaviour expected from those in judicial office. ‘Greco said that Malta needs formalised objective criteria and evaluation procedures for judicial appointments with guarantees of due independence, impartiality and transparency. The same guarantees of independence, impartiality and transparency need to apply also in the appointment of boards and tribunals exercising judicial functions.’

[280] From a historical perspective, one may see that it was Honn Debono who proposed on the agenda of Parliament and national debate, the subject of appointment of judges since his appointment in Parliament in 2008 and subsequently examined in detail, exploring it amply in the House Select Committee [Re-Codification and Consolidation of Laws] with Hon Debono as Chairman in meeting 23 of 13 Feb 2012, Meeting 25 of 27 Feb 2012 and meeting 31 of 7 May 2012 with Hon Members Francis Zammit Dimech and Jose Herrera and distinct guests including Prof Kevin Aquilina.

In the votes of Justice and Interior Ministry – Sitting 56 – Malta Parliament – 18 Nov 2008 – Hon Debono from his first year in Parliament spoke on the appointment and eligibility of Judicants.’ ‘One must be careful also on the age for certain roles as it is important, before an appointment as magistrate or judge, e.g. he has not only the academic abilities, but has also reached a level of maturity making him adapted to occupy a role of such great responsibility. As , as Hon Herrera sais, you are giving this person a power to take decisions affecting the rights and freedoms of our people. Thus I believe that when such roles are given, we must not only look at retirement age – I am saying there should be a particular age established in law – but we must see that this aspect is respected.’

In Private members’ Motion 280, Motion of Hon Michael Falzon and Hon Jose Herrera on Justice and Interior reform [no confidence in Justice Minister Carm Mifsud Bonnici] –Sitting 483 – Malta Parliament – 29 May 2012 – Hon Debono insisted on reform on the appointment of judges and said this subject was being treated in more detail in the House Select Committee [Re-Codification and Consolidation of Laws] chaired by Hon Debono- ‘On appointment of judges we are discussing in Committee. We saw the Scottish model and we are trying to effect reform! The retirement age must be reformed as we lost the best judges. On decent work conditions as I said yesterday, Mr Sacco told us that in court all is going down. He is the Prison Director. I don’t think he has a negative attitude.’

[281] House Select Committee [Re-Codification and Consolidation of laws]- Malta parliament – 11th Parliament – Meeting 23 of 13 Feb 2012 – Hon Debono said that the appointment of judicants depends on the minister’s decision. Not necessarily but it could also be, even if there were.

92 That the Minister appointed as judicants the people he chose. Now this speech must be forwarded and understood in the context of separation of powers. It is desirable to have a sense, even if remote and perhaps not real, of obligation towards the administration from the person who has been appointed judge? Now let’s agree, regarding checks and balances in the separation of powers, you are then told that you have security of tenure [282] in the sense that a judicant cannot be removed except with a two-thirds of the House. But what’s the truth? Many European countries progressed after abandoning this this system and it seems to me that we have to do this too. They did not completely abandon it, but each country has its own system which was refined not abandoned. [293]

In the Committee on the Consolidation of Laws [284] I presided by me and including Hon Jose Herrera present here, we were

more appointments, still the present system is not adequate and if 25 years ago our country had other priorities, one would close one’s eyes and move forward, we surely can’t do this today; we can’t leave the judge’s appointment system as it is where one depends on the Minister’s sympathy, and whether the Minister likes you and you are somehow close to him with no other criteria. One has to be realistic…’

[282] General estimates 2012 – Votes of the Justice and Interior Minister – Sitting 421 – Malta parliament – 2 Dec 2011 – Hon Debono stated – ‘We are a small country and know each other. Even in the judiciary where a judge has security of tenure and has constitutional obligations, there is sometimes rumour etc.’

[283] House Select Committee [Re-codification and Consolidation of Laws] – Malta Parliament – 11th Parliament – Meeting 23 of 13 Feb 2012. Hon Chairman Franco Debono said that in the previous sitting he asked Prof Aquilina to prepare a comparative report of methods of judicial appointments in various places. Dr Debono said in the clearest terms that even if appointments were made in the best ways, the system is not adequate as it depends on the choices of the Minister. There was agreement on the inadequacy of the system and that is why the Committee embarked on a comparative study, so the best system is selected. There was discussion and overview of methods of judicial appointments abroad. Prof Aquilina submitted a report on judicial appointments published in Law and Practice and gives a perspective on this matter abroad. It was explained that there were two methods of judicial appointments. There is the formal criterion based on experience in the profession; there is the substantive criterion where appointments of magistrates and judges depend on e.g. his integrity, what his peers say about him….That’s why there is a system of application, of selection as criterion.

Dr Debono feels that the best selection criterion can’t be radical. He suggests close examination the document comparing Germany, Ireland, New Zealand, South Africa, Canada and Australia among others. Dr Debono emphasises the dictum of the Council of Europe ‘to be based on merit, having regard to qualifications, integrity, ability and efficiency’ in the choice of a judge.

[284] House Select Committee [Re-Codification and Consolidation of Laws – Malta Parliament – 11th parliament chaired by Hon Franco Debono. Meeting 23 of 13 Feb 2012, Meeting 25 of 13 Feb 2012 and meeting 31 of 7 May 2012 extensively discussing the appointment of judges.

In meeting 23 of 13 Feb 3 trends were discussed: the Maltese trend where the executive selects the judicants and this is today a minority. Then, in another trend, it is still the executive appointing judicants, but includes the Judicial Appointment Board which interviews candidates, sees their CV, their connexions and such things. There are many models in this regard. In some models, the judiciary makes a report to the executive and normally this is agreed to by the executive though it’s not binding. The 3rd trend is when the judiciary makes the appointment and on the Continent, you have the Consiglio Supremo della Magistrtura in Italy, Spain, Portugal. It was explained that in this model where the judiciary itself makes the selection, it does not mean that the whole committee is chosen by judges though it is a majority of judges who select. In detail there was the examination

The Scottish model with a judicial appointments mcommittee proposing the name of prospective judicants. [285] Whatever is done in various for a, I believe there should be a form of grilling of a judicant, and this refines our system [286] even with the appointment of a judicial appointments committee [287] suggesting names and vets prospective judicants and obviously the Justice Minister and Cabinet recommend

The Scottish system where originally they had the system as in Malta, and now a Judicial appointments Committee starting function in 2002 and this exercise continues with its report to the minister and candidates.

Prof Aquilina explains that in the first case, i.e. the present system, surely he does not agree with it due to lack of transparency and accountability, but arbitrariness; one may have family difficulties and Dr Debono concludes ‘all not only know each other but are also related to each other.’ Dr Debono adds that the second one is not wrong as, while the executive keeps the right to appoint, there is more formality due to supervision by a committee. The 3rd one gives total choice to the judiciary as it has the majority and there are others interests unrelated to the judiciary. In Prof Aquilina’s words, ‘Among them three, I would rely more on the second and third, but the first one surely I don’t like.’

There was agreement between Hon Debono and members Hons Zammit Dimech and Herrera, together with distinguished guest Prof k Aquilina, that the Scottish system must be the one used and Hon Herrera suggested a draft based on the Scottish model. [ [285] House Select Committee [Re-Codification and Consolidation of Laws – Malta Parliament – 11th parliament chaired by Hon Franco Debono. Meeting 25 of 27 Feb 2012, refer to two exercises, the first regarding the Judicial Appointments Board, evaluating how the Scottish and other system work, and a second exercise on the fuctions and composition of the Commission for the Administration of Justice abroad. In the Scottish system remains the prerogative of the executive, appointing Judges, after consulting the Judicial Appointment Committee. Regarding the appointment of the Judicial Appointments Board in Scotland Section 9 was was discussed of the Judiciary and Courts Act of 2008, referring specifically only to the Judicial Appointments Board, limited to the appointment of judicants. In the same committee, Hon Debono had commented as follows:

CHAIRMAN: ‘The Scottish system seems closer to ours. It may be fine tuned as also Hon Herrera mentioned, though I wish to widen its scope to avoid duplication of the Commission for the Administration of Justice.’ CHAIRMAN: ‘We agree that the Commission as it is, is not the best consultative organ.’

[286] Franco Debono ‘Essential Legal and Administrative Reforms,’Times of Malta, 12 oct 2011.’ Such an improved packet, accompanied by more stringent criteria and a more transparent appointment mechanism, should lead to both the selection and the appointment of the best candidates from within the legal profession for this purpose.’

[287] House Select Committee [Re-Codification and Consolidation of Laws – Malta Parliament – 11th Parliament chaired by Hon Franco Debono. Meeting 25 of 27 Feb 2012. Hon Debono explained:

‘Now the Committee, as Dr Herrera has just explained, seemed tening towards the Scottish system where you have a judicial appointments committee that is specific and thus its composition and powers are more aimed in that direction, not a generic commission as we have today with many functions; then we proceeded to a process of reforms needed in the Commission itself. You are saying that the Scottish system is closest to ours requiring no jolts but I also feel that for example, a topic about which I do not really know what you think, is the issue of training.

Today you have a lawyer who suddenly becomes a magistrate. That they do a short period on the tribunal near other magistrates to gain experience is like the practice we lawyers have.’

Thus there was agreement on committee regarding Judiciary appointments whose direction is related to the Scottish system as even Dr Debono said, creates less jolts in the system.

94 who to appoint judicant. [288] I feel this is a fundamental necessary reform. [289] It’s urgent.

Meanwhile Minister Said and I [290] are working on this reform that’s progressing with various parts, including the increase of number of years experience – not so many but

[288] House Select Committee [Re-Codification and Consolidation of Laws – Malta Parliament – 11th Parliament chaired by Hon Franco Debono. Meeting 25 of 27 Feb 2012. Hon Debono explained previous discussions, adding that in view of the fact that present appointment system is not adequate, another system is needed without creating too much upheaval; that a system is found for balance retaining administrative discretion. Hon Franco Debono said that, with other members, : ‘We should move to a Scottish system where a Judicial appointments Committee has a say in recommending judicants.

The Scottish model for judicial appointments interested the Administrative Code approved by the same Committee.

[289] Dr Debono spoke at length on judicial appointments and removal, qualitative criteria for judicial appointments, the age of retirement which must increase. Dr Debono always spoke assiduously on this subject which he raised to a parliamentary, an even national debate. The Commission’s Final report on Judicial Holistic reform, in measures 13 -53 mentioned extensively the said judicial appointments, the Judicial Services Appointment Authority on appointment, training, promotion, salaries, pensions, discipline and also finally removal.

In Parliament, Dr Franco Debono spoke of the need for establishment of an organexamining prospective candidatures for the judiciary, assisting the Executive in Judicial appointments. He proposed the setting up of a Judicial Appointments committee for this purpose, and this was welcomed by the Commission that gave it another name i.e. Judicial Services Appointments Authority.

Regarding Judicial Appointments, Dr Debono had proposed an Anglo-Saxon model recognized by the Bonello Report without mentioning Debono by name. In this regard, Bonello proposes the Anglo-Saxon model already proposed in Parliament by the Committee for the Re-Codification and Consolidation of laws. – Malta Parliament – 11th Parliament – presided by Hon Chairman Franco Debono with members Hon Jose Herrera and Zammit Dimech. The Commission welcomed the judiciary choice model of suggesting years before by the House Select Committee of Recodification and Consolidation of Laws. Same Commission in P.40 of the Report, recognized that: ‘Thus the 2nd choice is the one which will satisfy the country’s needs. One must also say that the proposal of this Commission has been done before as it was the choice adopted by the House Select Committee re Recodification and Consolidation of laws in its deliberations and also the choice of the bill of the Administrative Code approved by the same committee. The Commission says that the salary and pension of judicants must increase as their European counterparts. The fact that judicants have a better financial packet has for long been mentioned by Dr Debono including his Private Motion on Justice and other for a so as to attract the best contestants among lawyers for the judiciary.

[290] House Select Committee [Re-Codification and Consolidation of Laws – Malta Parliament – 11th Parliament chaired by Hon Franco Debono. Meeting 31 of 7 May 2012. Hon Franco Debono said that after his discussions with Hon Chris Said, he was informed that the packet of working conditions and pay for judicants was close to finalisation. All this was dealt with in the Private Motion of Hon Debono in Reforms in Justice. ‘I am also informed by Dr Chris Said, with whom I had discussions on pay and woek condicions of the judiciary, that this important sector was almost finalised. Today all these conditions are not attractive and adequate for the work done by judicants. A judge must not only know the law but needs wisdom to judge whether a witness is truthful or not. One may condemn a person to life imprisonment or delete a minister’s decision. Thus the judiciary has an important role and their work deserves more appreciation. Even the retirement age of judges, as we said, must increase.

95 they must increase [291]. Today the legal profession has increased. A number of lawyers graduate yearly and I feel that the most required characteristic is wisdom, as you must not only know the law – the law is there and even the citizen has access to it – but you must have the wisdom to decide which witness is truthful or not. [292] This is not in any book, it’s rather a work and life experience, better still over many years as this allows a better judgement, more wise. We call it wisdom as you must not simply posses knowledge of the law, but you must have experience and wisdom [294] It’s the best expression and more precise, and is a characteristic

[291] Franco Debono, ‘Essential Legal and Administrative Reforms, ‘ Times of Malta 12 October 2011. ‘What is required fromn the judiciary is not just standing tall in all circumstances and code of conduct that reflects their duties, not just knowledge of the law, but also wisdom and a heightened sense of judtice. Since judges cn annul laws, quash ministerial decisions and condemn individuals to life imprisonment, nothing short of wisdom will suffice. Since in general, wisdom is not a quality of the younger age, the years of experience, expertise, and training required for eligibility and appointment should be increased. ‘

[292] Votes of the Justice and Internal Ministry. Sitting 273 – Malta Parliament – 4 Nov 2010. Hon Debono regarding appointment age of judicants, shared these thoughts:

‘let’s not forget that courts are not only of law, but of justice too, i.e. justice is beyond law. It is thus sensitive and requires adequate person. I wish to praise the work of judicants who in general do good, wise, serious work. In this regard, I also mentioned the age of appointment. In our small country, we only have about 30 judicants – judges and magistrate; I thus feel that the age for appointment as magistrate must rise from 7 to 10 or 12., while for judges, from 12 to 15 years. Let’s not forget that a judicant must decide on his own, according to law and his conscience, so we must review the years of experience necessary for this function. We must start considering not as from retirement age, i.e. the latter part, but the former part – from appointment date. I feel that recent appointments were good and I praise the.’

[291] Votes of Justice and Interior Ministry – Sitting 162 – Malta parliament – 19 November 2009. Hon Franco Debono spoke of the appointment age which must rise as well as the years of experience for eligibility, so that the final aim of justice is really wisdom and experience.. ‘I wish also to mention the retirement age of judicants: We have a number of judicants who have accumulated long years of experience; their retirement age must be reviewed and raised. A year ago in parliament I spoke about this and said we must raise the judicants’ retirement age. We must impose more years of experience for a person to become judicant, both for magistrates and judges.’

[294] House Select Committee [Re-Codification and Consolidation of Laws – Malta Parliament – 11th Parliament chaired by Hon Franco Debono. Meeting 23 of 13 Feb 2012 – Hon Chairman Dr Franco Debono spoke of knowledge of law and wisdom as req uirements for prospective judicants- ‘firstly the amount of experience required must rise. Your having 7 years lawyer experience does not make you magistrate. It mus rise. Twelve years for judges must also rise. It means that the role of judge and judicant is such that the more experience and wisdom you have, the better…We think judicants should accumulate over years, lots of wisdom, as knowledge of law is not enough; law is there where you find it, not to judge cases where apart from law, you need to distinguish between the truthful and those lying.

The time has come to add to what Hon Herrera said, which does not mean that wrong appointments were made, but even the appointment method is not adequate, as all agree; but there is another thing, the 2nd step. What system to adopt? And here things become complicated. No doubt our system is not good, but what system to adopt?’

that must find in all judicants regarding justice and wisdom. It’s the measure one must use in sensitive case, where a person risks life sentence, damages running into thousands if not millions.[295]

A judge also the the power to annul ministerial decisions. Even a law passed in Parliament which may be unconstitutional. Thus a judge has an enormous responsibility. In my 12 years in court I have seen many responsible judicants, working hand, possessing integrity and making our judiciary proud. Their conditions of work however need to be improved. [296] We had a courts’ building in Strait Street but had to be demolished; there were judicant’s chambers. Their pay must increase as part of their conditions’ packet. [297] They also need an administrative backup. Each magistrate must have a judicial assistant [298] doing also case research. Judicants don’t have this. [299] I link this to another speech

[295] ‘Franco Debono. ‘Essential legal and Administrative Reforms,’ Times of Malta, 12 Oct 2011. ‘What’s required of the judiciary is not just standing tall in all circumstances and a code of conduct that reflects their duties; not just knowledge of the law but above all wisdom and a heigthened sense of justice. Some judges can annul laws, quash ministerial decisions and condmen individuals for life imprisonment; nothing short of wisdom will suffice.’

[296] Votes of the Justice and Internal ministry – Sitting 273 – Malta parliament – 4th Nov 2010, Hon Debono on Judicants’ conditions of work, said:

‘Mr president, I conclude with a small point i.e. we must see that judicants have good conditions of work due to their great responsibility and apart from a better salary, they need a larger staff. It’s time magistrates have judicial assistants – involving a financial investment – to help them in their work. Today magistrates don’t have a technical staff and this must be considered.’

[297] Adjounrment of Hon Franco Debono – Excerpt from Sitting 474 – Malta parliament – 16 May 2012 – Hon Debono proposed a better financial packet for the judiciary-

‘I wish to live in a country where the judiciary is appointed differently with a remuneration that they deserve, regarding salary and pension, work conditions and retirement age up to 68 or 70 years as in some other countries, since we are losing the best judicants during the best years of their working life. I also wish to see a good criterion of eligibility. In fact in the Consolidation Committee we are at present also discussing the Scottish model.’

[Votes of the Justice and Interior Ministry – Sitting 273 – Malta Parliament – 4th October 2011 – Hon Franco Debono proposed a better financial packet for the judiciary as well as better conditions such as an administrative backup to attract the best candidates.

‘I come to the judiciary. I have been saying that the judiciary deserve better conditions. I received yesterday an answer to a PQ on photocopiers in the magistrates’ halls. There are only four photocopiers for 16 magistrates. These too are resources, not only the salary! I feel that the judicants’ salary must not be pegged to that of the civil service. Judicants must have a strong sense of wisdom and a packet of conditions attracting ideal candidates. For this work. I would like to ask the general public: If you needed a court service, what would you prefer, a better judicant satisfying the country’s needs or not? So obviously to have good judicants you need good work conditions.

I did regarding the fact that a magistrate must cope with inquests case decisions, hearing witnesses and write sentences. I referred in my introduction to a general point to the fact that in these sectors there are many good individuals, but the system does not allow them to work giving the best fruit of their work. This is the story of the individual and the system, where the individual does his best, but the system either expects too much from him or his work does not allow all best results. I regret to say that I heard some stories in court.

There is another government deputy, Hon Charlo Bonnici who passed certain comments. [300] One is surprised at a person who passes comment without having the least basic idea re what happens in Maltese courts and Police Corps. Tue, all have a right of opinion, but if a person has a certain experience on a sector and speaks out, another person must have the prudence and humility before expressing himself. In the court corridors you hear of magistrates who call the AG for advice. I do not know if this is true or not, but it’s not right to side with the accused or call the AG for advice as he is part of procedures, the other side and even if one genuinely ask for advice without other intentions. Re judicants, I welcome with pleasure the packet of improved conditions.

Regarding the retirement age, Mr Speaker, I also spoke to the pres where there was mention – and I know why Hon Charlo Bonnici referred to this – the issue of Chief justice. IO have said already that I have faith in the Chief Justice and the AG as close collaborators.[301] It is not desirable

And offering a good salary is not enough good salaries is not enough unless you add work conditions. It’s as judicants write sentences, examines proof and witnesses without any research help. How can he work? Also the inquest and judging functions, even in the best separation of powers, a magistrate can not investigate with the police and then judge cases as a judicial function. I have said this since 2008 upon becoming MP. I take this opportunity to augur a quick recovery to Hon Carm Mifsud Bonnici, but I am informed that thank God he is well, much better, though the sectors of justice and the interior also need to be well. It’s important.

[300] Confidence motion in government 309 – Malta parliament sitting 486 – 4 June 2012 – Hon Franco Debono said: ‘I address the chair on comments made by Hon Charlo Bonnici about me. He worked with Minister Louis Galea, also in the private secretariat, some weeks before the electoral campaign, he left for his own campaign, and he was elected but not Louis Galea! Is that teamwork? I did criticise teamwork but on issues. When attacked, I defended myself. On issues I spoke Mr President. And he mentioned the Chief Justice. I doubt if he has any idea Hon Charlo Bonnici about the Chief Justice. If hon Mario Demarco speaks on justice and the Interior, I understand, his father is Guido Demarco, imagine, but Hon Charlo Bonnici judges me on issues of justice and the interior, I don’t know! He is neither lawyer nor an expert in the area. With all respect, it is also not nice to whisper – I mean generally – to a blogger on our friends. On the Chief justice, he may see my comments, my speeches. All my comments are there.’

[301] Privte members Motion 280 – Motion of Hons Michael Falzon and Jose Herrera on reforms in justice and the Interior. [No confidence in Justice minister, Hon Carm Mifsud

98 at all to have a chief justice who calls the AG as a case has been lost, the AG appeals and it goes before the Chief justice. I do not need to carry on, but these things are very worrying! Mr President, our judiciary system has been through a lot of movement not 50 or 100 years ago but 10 and we must be careful these things are not repeated.[302]Retirement age is another issue; so we are dealing with retirement age, work conditions, appointments.[303]Recently we have lost some very valid judicants. One of

Bonnici] Sitting 483 – Malta parliament – 29 May 2012 Hon Franco Debono comments: ‘It was said that the Chief justice and the AG are like lovers. That’s very bad in a society and the judiciary must not try and intimidate the lawyers. Minister Said said – and Minister Said told me what he found but let me stop here as I have much respect towards him –as he knows – that a strong lawyers’ profession means a strong citizen.

[302] The case was about the corruption of the ex-Chief justice Noel Arrigo and ex-Judge Patrick Vella in 2002. Later, 10 years after, there were Chief justice cases of Judge Raymond Pace and ex-Judge Lino Farrugia Sacco. ‘When the foundations are shaken – Anything less than a complete systemic reform will not satisfy a palpable thirst for more seriousness in all level of the country’s administration,’ malta Today Editorial 17 Dec 2012.

‘In the space of just a few days, we have witnessed the collapse of a government after the defeat of its annual budget in Parliament. Much more worryingly we also saw the institution of the judiciary plunged into a deep crisis as a result of separate scandals in which two senior members were embroiled. Admittedly the two cases in themselves cannot realistically be placed on the same pedestal. One involves criminal charges placed against a member of the Court of Criminal Appeal [Mr justice Raymond pace] for allegations of bribery. The other concerns a sitting judge [Lino Farrugia Sacco] who was reprimanded by the Olympic Committee for his dubious handling of a presumed ticket scam. Naturally the firs scandal is far more serious. Still, both cases have, in different ways, caused incalculable harm to the image and reputation of the judiciary…and it does not help toobserve that the same reputation has already been besmearched in the past: first by a corruption scndal involving Chief justice noel Arrigo and Judge Patrick Vella in 2002; and then by a whole series of debateable sentences and court decisions even 25 years after the first case had initiated. On the contrary, what is needed is a root-and-branch reform of the entire system, taking into account the following concerns; how judges and magistrates are appointed [which should be concomitant with procedure for removal.]; a code of ethics to define and lay down rules on such matters as potential conflicts of interest among judges, among issues on private behaviour, lifestyle etc; and a revisiting of a number of basic justice issues such as the need for consistency in the application of such measures as bail.

Anything less than a complete systemic reform will not satisfy a palpable thirst for more seriousness at all levels of the country’s administration. One can only wonder why this reform was not affected when the Arrigo Vella case had first shaken public confidence in such an important institution, almost a decade ago.’

[303] Votes of the Minister of justice and the Interior – Sitting 273 – Malta parliament – 4 Nov 2010 – Hon Debono on retirement age said:

‘Mr president before closing, I wish to say that there was a discussion recently regarding the retirement age of the judiciary, their conditions, salary, pensions etc. It is god that the retirement age increased and must increase again. Some judicants retired but they are still quite fit. They can still offer years of service as it’s not sufficient for a judicant to know the law. They must have wisdom and life experience…These attributes increase with time as it is cultivated with the experience of cases and sentences. Thus I feel that in a particular moment we must use the fact that a person has been a judge for a number of years with so much experience.

99 There was Judge Joseph Galea Debono.[304] Maybe as he is interested in military matters, he brought discipline to the courts. When I entered his hall, I saw a certain seriousness, as also in other halls. We ended up losing him as he retired. I believe the retirement age must rise from 65 to 68 though not to 70. On the media I said these things and in this parliament too, I insist that retirement age must be 68.[305]

The independence of the judiciary was also mentioned in this context. [305] Recently these last years, even job distribution passed into the hands of the Chief Justice. [307] This may give rise to some problems as superficially one has a different perception of judiciary independence; but our checks and balances are not watertight compartments but just checks and balances. I ask why Judge Silvio Meli does not do cases of competition; he too has a certain seriousness and discipline. He also wrote law books

[304] Adjournment of Hon Franco Debono-extract from sitting no. 388 – Malta Parliament – 4 October 2011 – Hon Debono again appealed for a rise in judges’ retirement age by referring to judges who retired.

‘We need a judicants’ corps that’s motivated if you wish to have a strong democracy with strong columns. We must increase the judiciary’s retirement age and I gave the example of Judge Jos Galea Debono, Filletti, Sciberras – who retired during their best output. A constitution reform is needed. Why ‘constitutional’? As judges’ retirement age is at the heart of the Constitution. The appointment of magistrates and judges must be more transparent. And assure that while offering a packet of better conditions, we attract the best candidates for such sensitive positions.’ [305] Franco Debono ‘Essential Legal and Administrative reforms’, Times of Justice’, 12 October 2011 Dr Debono in this article insisted that the retirement age of judicants must increase. ‘Considering the present life expectancy and that we lost some good judges at a retirement age of 65, as in other jurisdictions.’

[306] Votes of the Justice and Interior Ministry – Sitting 56 – Malta Parliament – 18 Nov 2008 – Hon Debono mentioned judiciary independence.

‘The independence and impartiality of the courts are the highest values that a court should have. These are basic requirements; columns supporting a judiciary system. I also believe that the number of judicants must rise. We had the experience of two female judges apart from female magistrates; this must be encouraged. Judicants must persue adjournment. Their selection must be rigourous. This is because once you place a judicant in his commitment, only parliament can remove him.This is good as parliament represents all the people and choice of judicants has to be rigorous.’

[307] Justice and Interior Ministry votes – Sitting 56 – Malta Parliament – 18 Nov 2008 – Hon Franco Debono, referring to assignment of duties, said: ‘The Chief Justice’s duty was mentioned. I believe that judiciary independence is a fundamental doctrine supporting our legal system, and it must be respected. I do not mean the person who presently has this duty as I think he is one of the most serious and capable ever. We strengthen this independence if the chief justice has the power to assign magistrates’ duties. But no one must abuse these powers which are intrinsically good. The executive must not interfere with the judiciary while the powers of assignment of duties must remain within the role of the judiciary itself. But if necessary, a mechanism must be created to safeguard against abuses.

100

On competition and authority which are recognised on a European and international scale on the subject. Very well, you may say that the chief justice has wide powers and assigns cases, but one must examine the situation, I am not the only one not to have understood this as many wonder why Judge Silvio Meli, an asset and authority on competition is not assigned these cases.

I also worry about the fact that lawyers with vast civil case experience become magistrates in crime cases and vice-versa. We must consider this when appointing judicants.. [308] Firstly you have a number of years – two or three – while the judicant grasps his new role regarding that area of law as today specialisation is the norm. Thus long years working in civil cases followed by judicant’s role in criminal cases requires three years to adapt. I am not say that poor guy who comes before him, as they study and do lots of research, but if you have criminal law experts and a vacancy comes up in criminal court, why not find an expert in this field? I believ that recently, after calls including from me, we are making progress, adding that in certain sectors, the attitude must change.[309]

House Select Committee – [ Re-codification and Consolidation of laws] – Meeting 22 of the 7 Feb 2012 – discussion dealt with judiciary appointments. Hon Chairman said: ‘ I have mentioned that one of the points of my private Motions on justice was that a wide approval exists in this country on the fact that the appointment of judges and magistrates is not ideal, leaves much doubt and leads to people asking why they were not appointed.

This means that, from this point of view, you may have a person with all qualities, the country can have the benefit of these qualities while nobody ever appoints him. Why is there not a transparent method avoiding claims of lack of appreciation. And even, following an appointment, some may ask why this person not another if I am more qualified? Subjectivity must be avoided, this is one of the crucial questions in our judicial systems and if we don’t tackle it, we are wasting time. There are other minor things….’

[309] Dr Debono thinks that qualitative criteria in appointments of judicants must increase- ‘MP calls for stricter criteria on judiciary appointments,’ Times of Malta 15 Sept 2011.’The lawyer politician who was instrumental in forcing government to implement legal provisions giving suspects the right to legal advice prior to interrogation is now campaigning to ensure stricter criteria for the appointment of members of the judiciary and to hold them to account.

‘On the other hand, selection criteria must be more stringent and there should be better conditions, such as pay and pensions, to ensure we are attracting and choosing the best candidates for such sensitive offices,’ he said, expanding on what he wrote in his article. He acknowledged that, generally speaking, there were good judges and magistrates and he said he had full trust in the Chief justice.’

101

12. close examination of consequences of the last procedure of impeachment, of the efficacy of this mechanism and the Commission for the Administration of Justice at present, as constitutional checks and balances, and whether there is need for revision.

Mr Speaker, point 12 is : ‘Close examination of the consequences of the last procedure of impeachment, of the efficacy of this mechanism and the Commission for the Administration of Justice [310] as constitutional checks and balances, and whether there is need for revision.’

What do I mean? Firstly, the impeachment procedure [311] is good. We did not invent this, but it’s a system of checks and balances in our system, where parliament with a two-thirds vote, may remove a judicant from duty. It’s the only way of removing him, except for retirement. If he misbehaves and it’s proven, this House can also remove a judge. We recently had an impeachment procedure [312] which I will not address as it’s not my aim.[313]; my aim is to analyse in today’s realities, the mechanism of the Commission for the Administration of Justice [314] where you also have a minor discipline of judicants

[310] The Commission for the Administration of justice is established by art 101 A of the constitution and has the function of overseeing the courts’ work, gives advice and recommendations to the Justice Minister, as well as to effect discipline on members of the legal profession, including lawyers and judicants.

[311] General estimates 2012 – Justice and Internal ministry’s votes – Sitting 421 – Malta parliament 2 Dec 2011 – Hon Franco Debono said: ‘A reform is also needed in the way of appointing judges and magistrates to assure more independence. We must also see the practical effectiveness of impeachment and whether judicants feel they can’t be removed – which is wrong. So let’s see which last impeachment we had.’ [312] General Estimates 2012 – Hon Debono said: ‘We must also see the practical effectiveness of impeachment and whether the judiciary feels they cannot be removed – wrong. So let’s see which impeachment we had last. [313] In this regard, Dr Debono stated; ‘MP calls for stricter criteria on appointment of judiciary,’ Times of Malta 15 Sept 2011. After the failed impeachment of a judge a few years back, one must surely question the practical effectiveness of the procedure in place. It is undesirable to have a sentiment among a country’s judiciary that they are practically irremovable. Judges must enjoy constitutional security of tenure, however, impeachment procedure is an essential check and balance, and we must ensure its practical effectiveness,’ Franco Debono, a criminal lawyer and a government MP said. The fail impeachment mentioned by Dr Debono was that of Judge Anton Depasquale about 10 years ago who had not heard cases for 7 years, citing a crisis of conscience on the basis that his independence as a judge had been compromised by a law regulating the work of the court. The government motion was defeated when the opposition voted against. Dr Debono’s comments were made as a former chief justice, Noel Arrigo, was released from prison[ he was actually being held at mt Carmel Hospital in view of health problems] after serving22 of the 33 month jail for bribery. He qualified for remission, hence the shorter term.’ [314] House Select committee [Re-codification and Consolidation of Laws] – Malta Parliament no 11 – Meeting 22 of 7 Feb 2012 – Hon Debono said: ‘At the same time, we must analyse the composition, function and powers given to the Commission for the Administration of justice. I believe that Parliament must administer impeachment, then you have a procedure before impeachment which we must think of the way it’s done, today you have

102 and see the efficacity that must have the Commission for the Administration of Justice. [315] I ask first if this must be still presided by the President of the Republic. I do not agree with this, yet again this is related to the 11 points I was making on judicants, their appointment, conditions of work and retirement age. [116]

Regarding discipline mechanism, while you have judiciary independence, I thing the main point here is its composition. In Italy they have the Consiglio Superiore della magistratura, and one look at this model and see how they act short of impeachment. I think the main point is when you appoint a judicant. If the judicant is good, he won’t give any problems in his work duties, as indeed most judicants work seriously and assiduously. Our corps of judicants does not consist in hundreds and thousands and we thus find it easy to make good choices, nor should we need discipline procedures of impeachment. We have about 40 judicants but we need to increase this number.

Once in his sentence, Judge Quintano compared us to Cyprus, Greece and others, and concluded that we have few judicant and they must increase. [317] But the main point is when you appoint a judicant. If you make a good choice you don’t need am impeachment mechanism for discipline by a commission. But still, I think that the composition and powers of the commission, afte years of existence, must be revised. [318]

Commission but a revised Commission may have different role and powers, but seen in conjunction.’ [315] Franco Debono, ‘Essential Legal and Administrative Reforms: Times of Malta, 12 October 2011. ‘The composition and functions of the Commission for the Administration of Justice must be re- examined and reviewed and, at the same time, while respecting constitutional security of tenure, which is one of the basic tenets of the separation of powers, we must ensure that impeachment procedures are effective also in practice.’

[316] House Select Committee [Re-consolidation and Codification of Laws] – Malta parliament – 11th Parliament – Meeting 23 of 13 Feb 2012. Hon Debono said that the subject of judicant’s appointment is necessarily linked to reforms of the Commission for the Administration of Justice. ‘We can not discuss this sector that is so important of appointment of judicants.’ If not at the same time – I believe MPs agree in this committee – linked to this reform,we don’t also consider the reform of the Commission for the Administration of Justice. These are related and also the method of appointment of judicants will affect the role of the commission and eventually discipline. This is the other side of the coin.’

[117] Votes of the Minister of Justice and the Interior – Sitting 56 – Malta parliament – 18 Nov 2008 – Hon Debono proposed an increased in the number of judicants – ‘I also feel that the no. of judicants must increase. We had the experience of two female judges, apart from other female magistrates, which was an experience to be lauded.’

[318] Dr Franco Debono spoke of the need for evaluation of the efficacy in the needs of today. Dr Debono had referred to the need for formation and powers of the Commission for the Administration of justice must be reviewed. Dr Franco Debono both in his speech

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Mr President, one meets cases of discipline maybe of a minor nature. We are all human, we all make mistakes, though there are case of accountability among judicants. We all agree that we review the mechanism of the Commission for the Administration of justice especially its composition. I think it is crucial that among changes, the presence of the presence of the Republic must not stay as the Commission’s President, the composition must change and the powers reflect today’s needs. [319]

We must also consider in the judge’s appointments the situation in other countries. [320] I looked at the Consiglio Superiore della magistratura and its composition. Obviously you have in it political elements, from the AG, the judicants themselves and the chamber of advocates. I believe that

Parliament and the House Select Committee spoke of the need for addressing the composition and the function and powers of the organ for the Administration of Justice. In the House Select committee on Recodification and Consolidation of Laws there often was discussion on the Commission for the Administration of justice with distinct guests during meetings and propositions were examined aimed at strengthening this Commission. In meetings 22 and 23 of 7 and 13 February 2012, the House Select Committee on Recodification and Consolidation of Laws – Malta Parliament – 11 th Parliament, the Chairman Hon Dr Franco Debono had suggested an analysis of the Commission for the Administration of justice in full, and spoke on the review of the Commission as this was not done recently and and a discussion arose on amandments needed to strengthen this Commission. In meeting 25 of the House Select Committee on Recodification and Consolidation of Laws – Malta Parliament – 11th parliament – of 27th February 2012 presided by Hon Chairman Dr Franco Debono, the Committee had made a comparative examination of the positions and form of the CAJ.

[319] House Select Committee [Re-Codification and Consolidation of Laws. –Malta 11th Parliament – meeting 7 Feb 2012. Hon Fanco Debono said: ‘We must move on to conclude. Prof, I wish to analyse along with members, several point holistically regarding the CAJ’s composition and powers. The same comparative exam of other countries may be done here. For example in Italy they have the Consiglio superior della Magistratura which is similar to our CAJ. One must see and study. My opinion is based on knowledge of other systems but we must analyse as a committee. At the same time we need to analyse the composition, function and powers of the Commission for the Administration of Justice to see later what powers to allow it. I believe parliament to be a sort of impeachment; then you have a procedure to see how impeachment must be done. We have the Commission today, but a revised Commission can have also different role and powers, but they have to be seen in conjunction. Hon Jose Herrera: Firstly Malt’s President commented on the functioning of the Commission. One of the hottest areas there are. Chairman: He is saying inter alia that he should not remain president of the Commission for the Administration of Justice.

[320] In meeting 25 of the House Select Committee on Recodification and Consolidation of laws – Malta Parliament – 11th parliament – 27 Feb 2012 chaired by HonDr Franco Debono, theCommitte had made a comparative examination as with the appointment of Judicants, discussing a comparative process of positions and format of the CAJ. Prof Kevin Aquilina submitted a document titled ‘Councils for the Judiciary in new countries,’ which is a comparative examination. This is prof Wim Voermans and Dr Pim Albers, who considered existing councils in members of the EU to identify certain trends.

104 the need has come so that along with the form of appointment, even the Commission for the Administration of justice is reformed.[121]

10. Reform at the Family court, where mediation by part-time mediators is analysed and reviewed if necessary [here point 10 was dealt with as previously explained, since point 10 was postponed.

Here I wish to go back to the reform of Family Court [322] point 10 of the motion. Mediation, by part-time mediators, must be analysed and reviewed. When I started legal practice, this mediation was done by Judge. This system was reformed where it began to be done by part-timers.[323] I say that the time has come, after severl years of this practice, that

[321] In meeting 23 of the House Select Committee on Recodification and Consolidation of laws 11th Malta Parliament – 13th Feb 2012 the Chairman Hon Franco Debono had spoken on the CAJ’s need to be reviewed as this was not done recently and a discussion started onnecessary amendments so that this Commission reflects present needs.

Themes we are now dealing with, for example the CAJ, judiciary appointments are cardinal reforms for the justice system which should have been treated but were not.I will explain why I often mentioned, before this committee, even you Dr Herrera spoke about this, same thing as for the right to a lawyer; this was a law about which hardly anybody spoke about, and we let it sleep for 8 years with the consequence that we were the only country without the accused’s right to a lawyer in the EU. So now I link this to the speech I made earlier regarding the bad state of the situation. Bur as I heard a Judge say, current takes you back, i.e. you do your best to row energetically forward, while the current draws you back. It’s not because you receded but it’s the current that made you do so.’ ‘I wish to add to this the important matter of appointment of judicants and I believe that the members of this Committee agree with me – hand in hand with this reform, we may reform the Commission for the Administration of justice. These two things go hand in hand as the appointment of judicants affects the role of the CAJ and eventually discipline. It’s the other side of the coin. As we had previously done, I encourage Prof Aquilina…’

[322] Votes of the Justice and Interior Ministry – Sitting 56 – Malta parliament 18 Nov 2008 – Hon Debono spoke of the Family Court that’s established in different premises.’ ‘While before we had a small court, we are today living the reality of having halls for magistrates, you have civil court and family court which is wisely in a separate building. I praise the decision made by Minister Carmelo Mifsud Bonnici to separate family matters in another building. The you also have arbitration, mediation and other local tribunal work not to mention judiciary tribunals. That means that judicial activity is today spread on various sectors.’

[323]GeneralEstimates – 2012 – Hon Debono mentioned his reservations regarding the present Family court system, where instead of appearing before a Judge as previously, you appear befor a part-time mediator. ‘Today, one of the major problems we have at the Small Claims Tribunal and Arbitrations and Family court, is that we end up before lawyers instead of judicants. E.G in the Small Claims Tribunal, the president is a lawyer and a mediator part-time presides the Family court mediation.. I do not at all like these systems in a country where all know each other. Even in the Judiciary where there is a judicant with security of tenure and is constitutionally recognised, there are lots of rumours – so you may imagine,’

105 we analyse again, study closely the viability of this system. [324] There are many mediators doing good work, as per their best ability, but some of them have no legal background. I wish to state at this point that many lawyers act themselves as mediators with their clients. I know many lawyers who do their best to reconcile the parties in a marriage to avoid its breakdown.’[325]

That is the first process of mediation which in my experience as lawyer, I know that it’s done by many colleagues. The you go to court where you find that a mediator between parties who move on to a separation contract if there is no positive result.[326] I don’t hesitate to say that I preferred this work to be done by a judicant with facilities, human resources for this mediation process. [327]

[324] Votes of the Ministry of justice and the Interior – Sitting 162 – Malta parliament 19 Nov 2009 – Hon Debono has insisted since 2009 that it is time for more reforms in this delicate and sensitive sector related to the family court. Mr President we must work on reform that’s needed in the family court as many lawyers are complaining about matters there. We need to reform previous reforms there as this is a sensitive area.

[325] Votes of the Justice and Interior Ministry - Sitting 162 Malta parliament – 19 Nov 2009 – Hon Debono mentioned that mediation begins with a lawyer and in practice, it happens sometimes that mediators do not give sufficient time to maximize mediation. ‘He also mentioned family law and court. I am also concerned about this and the time has come for vision and examination of the mediation system. I was before mediators; do you know how long they tried to remedy a marriage? Ten minutes. This was after my having done two or three meetings in my office to reconcile while a mediator takes ten minutes without succeeding. I say to the minister that family court matters are not good. It’s useless saying we wish to strengthen the family and harp on values. What really happens on the ground? It’s all well and good to declare belief in values, but we know of cases where lawyers tried hard to reconcile a couple. Sometimes the problem is small; sometimes the problem is lack of communication and the couple ends up with increased tension. One hears of the olive and cherub seed where a seed become a big tree. But with some effort, the big tree is trimmed with good results of a smaller problem. It’s not allowed to flourish. ‘ [326] Bill to amend the Criminal Code – Sitting 77 – Malta Parliament – 28 jan 2009 – Hon Debono spoke of family matters, the introduction of mediation and the separation contract. ‘As a lawyer, I daily face these cases on non-maintenance. At times, as Dr Herrera said, there is an issue on amount of maintenance, loss of employment or overtime with loss of income; we have to deal with these problems. I do not see this amendment in an isolated form, but as part of new amendments in family law addressed by Minister Carm Mifsud Bonnici even previously as Parliamentary Secretary. Indeed big progress has been made in this area. But these cases all end up before the same magistrate in family court. A mediation process was introduced that in my experience left lots of good, when previous to separation the possibility of reconciliation is explored. If no progress is made, there is an expert to form a separation contract.‘

[327] Motion 439 – Malta Parliament – 25 jan 2012 – Hon Debono said: ‘Mr President, we dismantled the ordinary justice system in our courts to build a parallel system of tribunals and arbitration and mediation chaired by practicing lawyers acting as part-time judicants in the morning or afternoon. In a small country, this is of enormous danger, as the main preoccupation is that every one knows everybody else. Then there was a person who had just retired

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Mediation was done by a judge with years of experience; his wisdom has come from his experience and legal knowledge. Thus he has attributes and requisites for that work of mediation. I sincerely think that it was a good system and that a judge must be doing this work. We need today to see once more how today’s system works. [328]

Another point is the length of applications. Many judges do a lot of work in family court with valid results, done well. At one time there was Judge Noel Cuschieri whom I remember as Magistrate in drugs cases. I worked as lawyer in criminal cases with many cases before him; I know how serious, disciplined, valid he is. I have no doubt that in Family Court he also worked very well, but the time has come to review this situation. This is also because divorce has been introduced; we must stocktake the situation.

13 Introduction without delay of the act of reparative Justice, also strengthening the rights of victims, as well as extensive reform in various aspects of Correctional Facilities at Kordin.

Let me now come to point 13 of the motion mentioning the need to introduce immediately the Act on Reparative justice and I here make points on the prisons. As I said, I presented this motion on 8 Nov of last year when the Act for Reparative Justice had not yet been in vigore.

she started criticising me. She has the right. In any case, it’s up to her. Put she did not say how many roles she has been having while also being then a Minister’s Secretariat. Thus before criticising, it would be better for her to scrutinise her own behaviour while she was a judicant. In any case, good luch to her. It’s just a case in many.

Let me again go back to the system of judicant part-time. I do not know how these are appointed. I never asked to be appointed as God forbid that I would ask. But is it not ridiculous that in a small country as ours we dismantle the system of ordinary courts to make a parallel system of small claims where in the morning you have a case against the one who will judge your case in the afternoon. Our population is not of 70 million. It’s not acceptable. These systems may exist but not to dismantle one and create another. This same feeling was expressed by Dr Debono in many speeches where including the House Adjournment when he stated – Extract from Sitting No. 474 – Malta Parliament 16 May 2012 said: ‘for years in the sector of justice and the interior, there was a dismantlement of an ordinary justice system so we could build a parallel system of committees, tribunals, mediations and arbitrations.’

[328] Hon Debono many times mentioned the need for Court reform in the Family Court by reconsidering the present mediation system. In the General Estimates 2012 – Votes of the justice and Internal ministry – Sitting 421 – Malta Parliament – 2 Dec 2011 – Hon Debono in view of the present system of mediation insisted: ‘We need to review also the system of mediation, thus a reform is needed in the Family Court.’ In the private members Motion no 280 – Motion of Hon Michael Falzon and Hon Jose Herrera on Reforms in the Justice and Interior Ministry [No Confidence in the j Hon Carm Mifsud Bonnicii] – Sitting 483 – Malta parliament – 29 May 2012 – Hon Debono said: ‘In the Family Court, in mediating, there needs to be a complete rethinking and revisiting,’

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[329] Unfortunately, almost seven months after the establishment of this law, we still have structures of parole [330] which are not in place and this is very worrying, confirming what I had said in my introduction that in some cases, either nothing has been done or else very slowly. [331] I did not say this inorder tosay something or to criticise without a good reason. This parliament approved law after a process of about four years whereby we needed to hurry so that mechanisms would be in place at the initial moment. [332] Due to some procrastination, he who left prison last month did not even benefit from parole when this passed through parliament. This is not right . let me now make some criticisms and suggestions regarding prison.

I think that in prison the needs to be more security officers. We heard stories about prison which I will not repeat. In this motion, the aim is obviously positive. We know the defects and the problems and I need not repeat them. There is also

[329] Ex Minister Carm Mifsud Bonnici, in a newspaper article on the law about Restorative Justice confirms that the process took a long but essential time. Carm Mifsud Bonnici ‘The Restorative Justice Act’ The Malta Independent 2nd march 2012 – The Legal Restorative Justice Act [Chap 516] came into force on 27 Jan 2012 with the publication of legal notice 43. The act has paved the way for providing greater opportunities to prisoners to reform their lives during their stay at Corradino Correctional Facilities, while retaining the punitive element for offenders. The process, which led to the publication of the bill for restorative justice in jan 2011 and the eventual approval as an act of Parliament in December of last year, was exhaustive but interesting, challenging, and equally useful and indispensible. It was officially initiated in Feb 2009 with the publication of the ‘White Paper on Restorative Justice,’ followed by a four-month public consultation process. During this period, a task force, headed by Mr Joe Gerada, was set up and assigned the specific role of meeting with interested stakeholders and evaluating a number of proposals that were submitted. At the end of the process, the task force drew up a report that was published that year; it served as a basis for the bill subsequently published in Jan 2011. This long arduous process was essential, considering that the new law was major step gradually taking our country from a punitive to a restorative justice system, In fact this law is also introducing parole, which provides for a prisoner’s early release from the facility under a number of conditions. The apply where [a] an inmate seeks to be granted parole, in which case he or she must, during the stay at the facility, follow a tailor-made care and rehabilitative program devised by the competent authorities and [b] an inmate seeks release from custody, in which case he or she must abide by the conditions imposed upon him or her by the parole Board.’

[330] house Select Committee [Re-Codification and Consolidation of Laws] Malta parliament 11th parliament – meeting 33 of 28 may 2012 chaired by Hon Franco Debono amply discussed the institution of parole with guest Mr Natalino Attard – Director of probation and parole contributing to the discussion.

[331] Private members’ Motion No. 280 – Motion of honMichael Falzon and HonJose Herrera on Justice and Home Affairs Reform [no confidence vote in Jusitice Minister Hon Carm Mifsud Bonnici] sitting 483 – Malta parliament 29 may 2012 where Hon Debono insisted on procrastination to introduce Parole. ‘With all due respect! There is a galore of foot-dragging as he said he was patient. You who are waiting for parole to leave prison, wait as he said he is patient. Be patient as there’s Minister who has patience. Patience can be a Macchiavellism, waiting for the election but the motion came before the election. Anyway!

[332] This process began with the publication of the White paper on restorative justice, Ministry of justice and home Affairs, Malta Directorate for Policy Development 2009 followed by 4 months of public consultation. A task force was set up during this time, preparing a report serving as a Bill presented in jan 2011. The law on Restorative Justice Chap 516 came into force on 27 Jan 2012 in spite of the long process, though the mechanism was still not in place when the law came into force.

108 overcrowding in the forensic section of Mount Carmel hospital where there are about 20beds for 50 prisoners.

Mr Speaker, in a motion of 9 Nov I called for parole to come into force. [333] Since that time, the law is in vigore, but the structures are still not in place. What can I do? I do another private motion today so the structures are set up? Unfortunately in prison we had an acting director [334] for three whole years [335] in a moment when prison had big problems. [336] I used to regularly visit prison to see my clients and can say that the wardens do very good work in difficult circumstances. [337]

[333] Speech in reply to Malta President’s Speech – First speech – Sitting 2 – Malta parliament 12 May 2008, Hon Franco Debono since his first parliamentary speech insisted on the importance of reform and the need to practise the parole concept – an electoral promise. ‘But, it is also in society’s interest that as much as possible, a person’s reform has a great importance in order that, that same person, if willing, can re-adapt to society without problems. Thus I believe that there must be an introduction of an electoral promise on parole, after the positive effect of community service.’

[334] Three years as acting prison director’ The Times of malta 28th February 2012’ Answering a question by nationalist MP Dr Franco Debono, Dr Mifsud Bonnici said that at the same time, the acting appointment was made, there was a magisterial enquiry into the prevalent situation at CCF. This enquiry had to identify shortcomings and make recommendations to rectify them. The board made its recommendations in march 2009 and immediately formed a task force to see to their implementation. One regarded the organisational structure of the facility, particularly with regard to senior management. The task force delved into detail drawing up a structure to address the shortcomings.’

[335] PQ of Hon Franco Debono. After question32128 Malta Parliament, Hon Franco Debono asked Hon Minister of the Interior and parliamentary matters for how long the person whose details are sent separately, was deputy director at CCF. The Minister replied that the person was appointed on 26 August 2008, shortly after the resignation of the Director of the time; the role was given to a person who was Police Inspector as he acted as Deputy Director at the time. In his answer the minister said that when that appointment was made, consideration was take of the circumstances of that appointment following a Ministerial Inquest to shed light on the prevalent situation at the Facility at the time., making recommendations that identified problems could be rectified.

It resulted that one of the various elements proposed for recommendation by the Board, was the organised structure of the facility, especially Senior management. The Task force had considered in detail this aspect and created a structure to address lacks it came across. This was naturally complex and could not be completed in a few months.Sitting no. 450 – 27 / 2 / 2012.

[376] Private Members Motion No 280 – Motion by Hons Michael Falzon and Jose Herrera. On Justice and Interior Ministry Reform [No confidence in Hon Minister Carm Mifsud Bonnici] – Sitting no.483 – Malta Parliament 29 may 2012 where Hon Debono said: There is a big crisis in prison with three years of deputy director. I put PQs about this, and I got excuses re delays. A galore of foot dragging!

[337] Bill on Restorative justice no. 73 – Sitting 317 – Malta Parliament – 22 Feb 2011 – Hon Debono – ‘I have prison experience as lawyer and praise the director for his work. I also thank the warders, probation officers and social workers who do lots of good in this area. You have law-breakers in prison but let’s not forget their humanity. Let’s consider what led a person’s problems and what led to his mistakes.’

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Prisoners have undergone negative experience, but there is also lots of good in them; we condemn actions but not the persons. In each person there are valid aspects too, which may be rebuilt. A person committing mistakes is not a finished person; we cannot throw away keys into the sea. Today justice systems are not ‘eye for an eye’ as it used to be, as reform has become more and more important with payment for one’s mistakes. I have come across people who have lived a totally disorganised life. I have seen a prisoner who became an artist and abandoned drugs.

Thus, with good structures, so much restorative justice can take place. Let me now speak of classification of prisoners. I salute Prison Director Mr Brian Zammit [338] whom I have known for a long time. He was a police inspector – very serious and organised; his work is excellent, but one needs more prison warders. [339] A reform is also needed on warders’ work practices. Warders have explained to me how night work is…with a very short break before day work. [340] Apart more warders, one needs a re-classification of work. [341]

Private Members Motion No 280 – Motion by Hons Michael Falzon and Jose Herrera. On Justice and Interior Ministry Reform [No confidence in Hon Minister Carm Mifsud Bonnici] – Sitting no.483 – Malta Parliament 29 may 2012 where Hon Debono said: ‘The Prison Director said he is a lawyer with great patience, having been deputy director for 3 years. Thus why is a new director needed? I say well done re dog ill treatment. But on the matter of director, whom shall we blame? Dog ill-tretment mus be addressed but what about all the other thing? Let’s create order.

[339] House Select Committee [Re-Codification and Consolidation of Laws] Malta parliament 11th parliament – meeting 33 of 28 may 2012 chaired by Hon Franco Debono amply discussed the prison matters. ‘Chairman. Can you discuss your work as director of CCF after, unfortunately, 3 years as deputy director? Mr Brian Zammit:‘Anybody can slide downwards; Two small things. Expediency and procedure. Fast procedures lead to less prisoners regarding pending trials. I doubt if we have this now… Chairman. They have one fourths.

Mr Brian Zammit: We have one third which became more than one fourths apart from those who have been sentences and have other sentences. In meeting 33 of 28 May 2012 the Criminal Code was discussed once more with guest Mr Brian Zammit and Dr Debono expressed satisfaction regarding the fact that the Corradino Correctional Facility now has a Director based upon meritocracy.

[340] Foundation From Darkness to Light’ ‘Memorandum on the occasion of approaching general election.’2013. Point 13 mentions the appeal of Dr Debono for more workers. ‘Today, prisons operate with less officers than needed. Many are forced maybe even illegally, to work consecutive days without leave. How can they work well if they end up being so tired? A restructuring is necessary with proper conditions and pay without the need for overtime. During the last intake, this happened after many years and many others had already left.’

[341]Foundation From Darkness to Light’ ‘Memorandum on the occasion of approaching general election.’2013. In point no. 4 there was an affirmation of Dr Debono’s proposition of

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There seem to be problems in division 6 which has also new prisoners. You have in prison different types of prisoners, some due to non-provisional freedom, first offenders and others with a 10 or 15 year sentence. Some classification is done but not enough.

I also wish to mention unit Young Offenders Rehabilitation Services [YOURS] [342] which had to leave the CCF, but I leave this to when I speak about minors. After various calls, the Act on Restorative Justice had still not became law.[343] Till this very day, 7 months after I presented my motion, we have not yet processed any parole application and this is evident from a PQ [344] I made so one understands also

Classification. Point 4 regards prison crowding. ‘With the no. of prisoners close to 600, prison is not functioning properly. Prisoner classification is urgent. Sentenced ones must be separated from arrested ones and placed apart. One can take as model the English system where a prisoner moves up from one classification to another depending on the case and on behaviour.’ [342] YOURS –Young Offenders Unit Rehabilitation Services is part of CCF which was moved from Corradino to Imtahleb.

[343] Dr Debono called many times for the law to be applied, both in Parliament and in the media. Indeed Dr Debono said the following in a local paper: Franco Debono: ‘Restorative Justice and Parole’ – Te Malta Independent 6 Feb 2014. ‘The long awaited restorative justice bill was published on 25 January. This bill is part of a process that began with the publication of a White paper on Restorative Justice back in Feb 2009, and a subsequent consultation took six months. A suitably administered and monitored parole system offers an incentive for personal reform in that it provides for early release from prison. Reforms within the CCF, especially upgrading the educational services, offer the required opportunities. The newly puvblished bill has also to be seen in the context of such reforms.’

[344] PQ 34414 Malta Parliament of Hon Franco Debono by which he asked the Interior Minister and Parliamentary Affairs how many parole applications were made and what resulted. 9/5/2012 – Hon Mifsud Bonnici is informed that so far 159 applications were made; some were not considered due to ineligibility as per law and others are being considered. Sitting 474 – 16/5/2012. PQ 32423 Malta parliament Hon Franco Debono asked Minister for the Interior and Parliamentary Affairs Hon Mifsud Bonnici to state the names of members on this board on Restorative Justice and by which criteria? 28/2/12. Hon Mifsud Bonnici told questioner that Boards under Restorative Justice were being set; indeed on Wed 29 Feb 2012 an offenders assessment board was set up. As applies to any similar appointment,, the persons are chosen as per experience, profession, qualifications and adaptability to expected role. Sitting no. 453 – 5/3/2012.

PQ 34698 Malta parliament Hon Franco Debono asked Minister for the Interior and parliamentary Affairs if Boards on Restorative justice had been set up, who are their members and their criteria of choice. 17/5/2012. Hon Minister answered that the mentioned boards were being set up. So far were set up Offenders Assessment Board and Victim-Offender mediation Committee. With their constitution announced with Press Releases no. 503 and 592 respectively. Criteria of choice were as per Articles of the Act mentioned above. There is at present an exercise of appointment of a Parole Board and a Remission Board. Sitting no. 480- 28/5/2012. PQ 35063 Malta parliament Hon Franco Debono asks Minister for the Interior and parliamentary Affairs since the Act on Restorative justice has been in vigore for months. But as the administrative structures are not in place totally, doesn’t the Minister think that thus the government would be exposed to damages from these people who are entitled to parole cannot make use of this right? 25/5/2012 – Hon Carm Mifsud Bonnici informs that

111 what led to this motion and what was the aim behind it as it was surely not anything personal regarding the Minister. We say ‘res ipsa loquitur’ which means that facts speak for themselves.

In fact we are today discussing these positive propositions and my reservations regarding these areas. Re point 13 of the motion, I say that lethargically we introduced a law possibly in January, [345] but I appeal for more efficacity as at the end of the day, a person looking forward to parole is hardly interested in a law that is not being implemented. It’s like the right of arrested persons to a lawyer on paper without applicability. With international organs who were perhaps chasing us, we seemed to have it in vigore, but an affected person could not use that right. I pass on to point 14 of the motion, to conclude.

14. Establishment of a Drug Court – discussed for years. Point 14 of the motion speaks of the setting up of a drugs court discussed for years. With due respect, I wish to widen it to the revision of drug law. Firstly the time has arrived to see if consolidation may exist between Chap 31 of Malta laws – Medical and Kindred professions Ordinance – and Chap 101 – Dangerous Drugs ordinance [346] – especially their criminal aspects [347]. This Chapter has certain

Hon questioner as per standing orders 27[5], PQ cannot be made as if the questioner is asking for legal advice. Sitting 484 – 30/5/2012.

[345] law on Restorative justice Chap 516 became in vigore on27 Jan 2012.

[346] House Select Committee [Re-codification and Consolidation of Laws] – Malta parliament – 11th Parliament – Meeting20 of 11 July 2011 with on the agenda, the Consolidation of Criminal law – Hon Franco Debono says:

‘If you allow me, Dr Grech, do you agree that the Dangerous Drugs ordinance needs to be overhauled where legal notice of 1939 re full control of dangerous drugs? It was emended over the years, but you have concepts that are different from the Criminal Code. Not as they are special, very well, as in the drug law we adopted special procedures, but which jar with other concepts of criminal law. – as I see them at least – thus I see the consolidation process from a consolidation aspect, i.e. you have consolidation in concept obviously helped by special procedures.

[347] Votes of the justice and Interior ministry – Sitting 56 – Malta parliament – 18 Nov 2008 – Hon Debono since his first year s MP insisted on a Drug Court and the need to review drug laws incorporated in the Criminal Code. – ‘I refer to the drug law. Today drug cases come before to magistrates only. Magistrate Quintano does very valid work and with the intervention of social workers we may refine the concept. Unfortunately many people in this vice have social problems and it’s not enough to sentence them, but also to see the basis of the problem – so a drug court is important in concept.

I think drug laws may be incorporated in criminal law without stopping there; we must review old laws. Today, the situation in this sector has evolved, changing radically and we must examine these laws, especially chapter 31 and 101, to see if incorporation and amendment are necessary – some concepts are outdated. I praise efforts made to amend the drug law over the years to go with the times. But we must now amalgamate the two laws.

112 aspects which are not of a penal nature. Apart from the installation of a drug court [348] I wish to say that I have great reservations on propositions made by Minister Carm Mifsud Bonnici on the bill he presented in parliament obviously with no consultation among his parliamentary group – I suggest that the scheme for dangerous drugs, of specified medicinal, that are controlled and restricted i.e. prohibited by law, is adjourned every 6 months in relation to international realities.

What happens now is that as one is caught coming in with drugs that are not controlled by law and then we see what to do. We had a case of Khat we consider not to be within the law. And then we expect the courts to bend over backward to judge in the lack of ministerial administration without a mechanism to analyse the international scene. If this is done, it is said: young people use methadone, so hurry to include it in the scheme of restricted medicinal, so that a certain organisation of regulation exists. This happens also for mechanisms that are in place; we must be proactive not reactive. It’s one of the most fundamental things drug laws require and can be done easily. You only need a mechanism in consultation with the police and the Commission on Drug and Alcohol Abuse, with a scheme that is adjourned every 3 or 6 months as needed. It is now ridiculous. If then some person gets away due to a new scheme, nothing can be done, but at least you have a mechanism in place.

Next time I will speak on the setting up of drug court as well as the discretion of the AG in procedures of

[348] Debono many times spoke of a Drug Court and he was prophetic as it was established in different dimensions.

Bill to Amend the Act on probation – Bill no. 40 – Sitting 203 – Malta parliament – 22 March 2010 – Hon Debono spoke of the Drug Court-

‘We heard about the drug court. Firstly I wish to praise two judicants. Before them there was on Magistrate dealing with these matters, Mag David Scicluna followed by Mag Lawrence Quintano, and the Mag Noel Cuschieri – both of the latter are now Judges. I wish to praise the work of these 3 judicants in this area, but the time has come to continue improving the court in the drug cases related to social problems. Many of them consist of simple possession and easy to judge. However we must continue to create progress in relation to the fact that such cases have a social and family background. The progress I refer to would lead to better rehabilitation. The drug court as it is is still in evolution, it needs to be cultivated, but I must say that probation is one of the tools leading to rehabilitation.

With reference to drug law, I agree with Hon Jose Herrera where there are cases when the individual’s and witnesses’evidence need not be corroborated. It’s important to combat crime and for justice to be done, but we must protect the process of decent audition, as some people lie well and may convince a judicant, thus creating an injustice. I must also speak about the amendment of drug sharing. It’s not trafficking i.e. a person’s intention is not to make money, but a sharing of drug. I mention the case of amendments used wisely . These are cases when a person may be saved avoiding prison. I believe that the courts understand and use this amendment well.

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Drugs. Today the AG need not explain his decision. This is not due to him or his lawyers but due to the present system. [349] During next session I will explain better.

I will also speak on cultivation, a situation reminding of the cased Gisela Feudz, a Swiss student entering Malta with some cannabis.[350] The law previously stated that this was considered trafficking with 6 months in prison – which created lots of negative publicity to us. [351] I am not saying she deserved no punishment but only for possession as in Malta. Bringing it from abroad does not mean it wasn’t for her personal use. We amended that law but we now have a similar issue re cultivation. A 2 cm plant is considered trafficking with six months in prison even if it was for you. [352] I also think that this was done by a mistake of

[349] Dr Debono’s appeal regarding the AG’s declaration on law amendment led to a national debate. This criticism did not come only from Dr Debono but of the people in general who organised a demonstration on this.

‘Drug protest to challenge ‘unquestionable’ AG’s discretion who has absolute discretion in assigning cases to upper or lower courts.: with a difference of six months to four years and maximum penalties from 10 years to life – Malta Today 12 Dec 2011.

It was described as a protest demanding decriminalisation of soft drugs in Malta – but lurking behind this protest in Valletta, there is a wider scope related to the absolute power of the AG on decisions affecting absolute discretion by the AG with drug crimes being one of the cases. Within this scope there is the AG’s absolute discretion of case assignment at upper or lower courts. The AG’s discretion was described as ‘unquestionable’ by Malta’s Constitutional Court, in a verdict Giglio challenges as ‘weak’ and unsound. Independent of Saturday’s protest, lawyers like Giglio and Debono openly challenge the sheer breadth of the AG’s discretion to choose between different courts [with serious implications to sentencing].

This in the light of a number of anomalous and often inconsistent decisions: including but not limited to the case of Daniel Holmes, whose 11 year sentence exceeded the very maximum he would otherwise have faced before the magistrate’s court The rationale’s behind the AG’s decisions in such cases is not always clear-cut, and lawyers have in the past argued that the maximum discretion he enjoys can be abused to extract a guilty plea. Persons under arrest for drugs etc are often warned that their case would be heard before the upper courts facing life imprisonment instead of maximum 10 years unless they cooperate with the prosecution and plead guilty’.

[350] Ivan martin ‘Drug users never got prison terms – Judge Galea Debono ‘If people were sent to prison, I would have seen an appeal’, Times of Malta 2nd may 2014 – ‘The student, Gisela Feuz, had admitted to bringing a small sachet with her from Switzerland in the aim of sharing it with her boyfriend. She was imprisoned for a mandatory six months guilty of importation with intent to traffic.’

[351] Ivan martin, ‘Drug users never get prison terms – Judge Galea Debono’ – If people were sent to prison, I would have seen an appeal,’ Times of Malta 2nd may 2014 – One of the cases made the international headlines after a 16-year old Swiss student was imprisoned for six months found in possession of under one gram of cannabis in1997. An amendment was made and now the courts can exercise their discretion in such cases.’

[352] This situation angered citizens who organised a protest.

114 Legislator and must be amended but we continue on this next time Mr Speaker.

Mr Speaker. Thank you. Hon Debono will you remain in possession?

Hon Debono. Yes, Mr Speaker, I will remain in possession.

Mr Speaker. Thank you. It’s time. I ask the Minister of Justice, Public consultation and the Family to please propose an adjournment.

Sitting 492 20 June 2012 Mr Speaker. Hon Franco Debono is in possession.

Hon Franco Debono: Mr Speaker I hope to end my speech today, on the motion I presented on 8th Nov. Your speech on 7th June struck me [353] Mr President, and it makes much sense in the context of this motion I quote from a speech by Dr Fenech Adami in this house and I call it his greatest speech or one of the greatest, in this House, describing the fundamental human rights.[354]

Raphael Vassallo ‘Drug protest to challenge AG’s discretion. AG has absolute discretion in assigning cases to upper or lower courts: the difference is a minimum sentence of six months and a maximum of four years while maximum penalties are from 10 years to life.’ Malta Today, 12 Dec 2011.

‘It has been described as a protest demanding decriminalisation of soft drugs in Malta: but lurking behind Sunday’s planned march in Valletta is a far-wider challenge which aims to end the absolute discretion enjoyed by the office of the AG on decisions which would radically affect the possible sentences for certain crimes – including drug related. The first issue concerns the failure of maltese law to distinguish between cultivating and trafficking – a fact which leaves the Courts with no discretion but to apply draconian sentences associated to international drug trafficking, even with little evidence proving: ‘intention to traffic’. Promoted as ‘Cannabis Reform Demonstration’ Saturday’ protest was sparked off by prison sentences handed down for possession and/or cultivation of marijuana one of which was the Holmes case, sentenced to 11 years and fined Eur 23 000 for growing 2 cannabis sativa plants in his Gozo apartment. Within days of Holmes’ conviction, a petition urging a revision of sentence attracted over 1000 signatures, prompting widespread calls for reform of Malta’s drug policy. A facebook group promoting a public protest onSat 17 Dec was quick to follow, with 500 intending to attend.’

[353] Dept of Infoformation DOI Malta, press release1294 – 7/6/12 – Speech of Hon Michael Frendo, speaker of Parliament, on the occasion of Sette Giugno – hastings Garden – Valletta – Wed 8 June 2012.

[354] With reference to Emeritus President Eddie Fenech Adami and fundamental human rights, Debono shared the following thoughts: in ‘Quest for a healthy democracy’, a current theme in Debono’s committed writings.

Franco Debono, ‘Quest for a healthy democracy,’ The times 16 march 2012. ‘A weak democracy risks degenerating into an oligarchy. I have claimed various times that myself and others are victims of a wrong political system. In fact I have campaigned for political, constitutional and justice reforms which compare to and compliment the great reforms piloted by Eddie Fenech Adami in the late 1980s and 1990s leading to a modern state based on liberty, fraternity, meritocracy and accountability. Democracy is a dynamic system and it needs constant upgrading.

115 I was struck by the statement at the base of ugly events which took place in our country, the murder of Raymond Caruana, the violence of the eighties and when the Police Corps was in bad shape. So there was a historical speech when Opposition chief of the time Dr Eddie Fenech Adami, explained passionately the importance of having in a country a respect for fundamental human rights.

But I also wish to react to a speech you made on the 7th June, to which I had the pleasure of attending. I quote: but history teaches us that the rights you win must be safeguarded and you must remain vigilant[355] – a word I too like to use – continuously to be sure that they are not lost. This applies to democracy as well as to rights, and we are here talking of justice which includes fundamental human rights and others having also a certain importance. We must be vigilant and this is the aim of this motion.

Indeed this motion states that there are structures in justice and the interior which must be addressed and implemented. I explained in the preamble of my motion which aspects, in human resources, in equipment as well as in certain sectors the mentality and attitude existing at the time. I believe we must build these three main sectors. I explained how no doubt so much has been done but still so much more needs to be done. Indeed I said in my motion:

‘I thus propose that this parliament discusses these matters and decides on which measures and steps must be taken and in which way.’

[355] Department of Information DOI, Malta. press release. PR 1294-7/6/12 – Speech by Hon Michael Frendo, Speaker of Parliament on the occasion of Sette Gougno – hastings Gardens – Valletta – Wednesday 8 June 2012.

‘But history surely teaches us that rights gained need safeguarding daily and continuously to make sure they are not lost. As a people this is our call today, as servants of democracy, as guardians of constitutional institutions, as a civil society, as press and broadcasting, as citizens. In this frame, it is the duty of all these who safeguard Parliament and the figure of deputies elected by the people. Every lack is to be condemned ; the value of the voting document that citizens place in the voting box from which emerges the free will of the people.’

In the same commemorative speech Hon Michael Frendo referred to preparations for a video live streaming – one of the strong proposals of Hon Debono to bring parliament closer to the citizens.

‘this year we prepared the infrastructure to broadcast directly, by internet, on Parliament’s website, the video on committee meetings of parliament and this as preparation in the same way for plenary debates. The commitee for house work of parliament has before it proposals on the setting up of this matter, a proposal which I put before this House a long time ago, and the time has come to put this into practice so that the last impediment to regular parliamentary transmissions would be won. We have already done trial transmissions. I appreciate the fact that in the new parliamentary premises, the call was approved for equipment to be installed quickly so debates of plenary sessions are broadcast.

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This is so important for one to understand the reason for this motion.

It’s a positive motion in which I wish to express humbly as an MP to bring to the parliamentary agenda even matters only discussed in the media and other for a in a sporadic way. It’s my aim and intention. It’s not a motion of no confidence in anyone, but contains position propositions for this justice and interior sectors where good governance and human rights are at least as important as any sector, even as the economy. I have no doubt that speakers from both sides of parliament, even from the opposition, will make interesting propositions, complementing my own.

I mentioned reforms in Family Court. I obviously have no time to go into detail but I invite the Permanent Committee on Social matters chaired by Hon Edwin Vassallo [356] – I know this was a very active committees and Hon Vassallo has a lot of energy in his work – to closely examine each point which then requires deeper study whereupon on goes into the heart of the matter.

I invite the permanent Committee on Social matters to examine more deeply this situation. For those not familiar with the court, it’s good to know that what we called the Second hall is of voluntary jurisdiction, different from a contentious court. I so suggested, as a subject one may explore, that since a judge acted as mediator between parties due to his experience, he has mediation faculties accumulated over years of duties, with a legal knowledge of a certain analytical depth. [357]

It’s a good thing we set up a Family court installed in a premises of Strait Street away from the main court building. These are all good things, Mr President, but then the time come to build more on what we have acquired. I once heard, if I am not mistaken, Judge Meli, who was still a Magistrate, that if you don’t row you don’t remain where you are but you go backwards. So, as you said, rights must be safeguarded daily and remain vigilant continuously to be sure that they are not lost by stopping to row, to avoid being draw back by the current . So I mentioned the Family Court in that sense, requiring deep analysis today.

I repeat that I invite the permanent Committee on Social Matters to also do a deep analysis of the situation. I am sure there will also be propositions of today’s situation. Also further propositions will add to those already applied

[356] Permanent Committee of Social matters – Malta Parliament – 11th parliament chaired by Hon Edwin Vassallo.

[357] Franco Debono, ‘Vision for justice,’ Times of Malta, 11th Sept 2011.Franco Debono asks if the previous system was better with mediation by a judge. – ‘The Family Court needs revisiting – we were better off when a judge conducted mediations instead of a mediator.’

117 that after five years or ten, there is fine tuning. Following the setting up of Local Councils,, these were reformed in this legislature. MEPA was set up and then reformed. One cannot stop after a first reform, with the thought that nothing else needs to be done.

Let me pass on to other point. While recapitulating yesterday, I said that various speakers in the media as well as here in Parliament, explained that my motion a month before that of the Opposition, would have made more sense if it were presented before. I explained that it would surely have been more desirable if this had been done since a split was planned between justice and the interior and this motion would have been better effected before this split, since these reforms are needed by the country.

Yesterday for example I mentioned the retirement age for judges, their work conditions and method of appointment. I think that retirement age must be 68 years or 70, no problem, but it must at least be raised from 65 years to 68, a packet we are working on together with Minister Chris Said who seeks my cooperation on this and other matters related to justice. [358] We practically speak daily at length. But since justice and the interior were going to split, one may ask if this motion – I was not talking on a re-shuffle, but on that particular point – were discussed before this parliament exactly before this split.

Common sense clearly indicates this. I>e. not bring this discussion before the Opposition’s motion, but effectively before, and I believe this would have been in the national interest while it was a good step to split the two sectors of justice and the interior. I had indeed made many appeals for this to happen, apart from the fact that this point was part of a private motion. This step was quite well received, including from civil society in general.

I wish to make another point before continuing, point 14 in the reform of the drugs law. If I wanted to be proud, I would have stopped pushing for reforms. Many opinions were expressed in the media, there was obviously a certain freedom of expression with accepted criticism. Certainly a variety of opinions is welcome. It’s part of democracy. However common sense proposes a certain direction. I did not say; let them do these reforms and I will stop pushing. I feel that today all agree that my main aim was reforms; I wish to see a stronger sector, more updated. That’s why I presented this motion while insisting that this motion needed to be discussed.

I had also said that the argument was that if I wanted to be proud, I would have said: let them do the reforms themselves, it’s their business, I will do nothing! I could have done this, but my aim was not personal gain, personal interest, but I considered this country’s interest as superior so that eventually these reforms would come about

Karl Stagno Navarra, ‘Gonzi says reshuffle ‘in the national interest’. Franco Debono withdraws support – Malta Today 6th January 2012. ‘New Minister Chris Said said his intention was to collaborate with Franco Debono on criminal justice reform.’

118 in an implemented structure. I also explained that some of them were implemented after the presentation of the motion, especially the split between justice and the interior while others were being implemented. It is of satisfaction to me that this motion was a catalyst, a spark leading to our action on matters I wish to mention about which there was little debate on the agenda, including judicants’ work conditions, their retirement age and the method of their appointment.

As I also said to the select committee of the House [Re-Codification and Consolidation of Laws] 359, we are discussing the Scottish model, a model that impressed considerably Hon Herrera, regarding the appointment method of judicants where you have a judicants’ appointment committee which proposes names to the Minister who eventually chooses. So we would be retaining a system we have, while adjourning it to today’s needs. I think that this Scottish model is good. If we should discuss other models, let’s discuss it, but it seems that even the justice spokesperson in the Opposition agrees a lot with this model.

Mr President, let me continue talking about the revision of drug law. [360] I mentioned 4 main points where I feel that extensive reforms are necessary. I mentioned the list of dangerous drugs – which are obviously illegal – and I explained how there should be a mechanism, including the Committee on drug abuse of drugs and alcohol or some other committee or organ. Which every six or three months or some other period, but systematically, amends that scheme, since, as I explained yesterday, it does happen that person arrive with a new drug. There was the case of the drug Cat – I believe that my colleague Dr Herrera had worked on this – which was not stipulated by law, and this creates difficulties. The scenario of illicit substances

House Select Committee [Re-Codification and Consolidation of laws] – Malta Parliament – 11th Parliament – Chaired by Hon Fanco Debono – Meeting 23 of 13 Feb 2012, Meeting 25 of 27 Feb2012 and Meeting 31 of 7 May 2012 which discussed judicial appointments.

[360] House Select Committee [Re-Codification and Consolidation of Laws] Malta parliament – 11th Parliament – In Meetings 32 of 23 May 2012 and 33 of 28 May 2012, Hon Chairman and guests discussed together the possibility of codification of drug laws – Hon Debono explained: ‘After our last meeting discussing the Consolidation of Criminal laws and it seems there was a lot of interest during the last meeting attended by the Commissioner of Police, the AG and the Director of prisons among others here with us today. Briefly the meeting mentioned the urgent need, essentially that laws of a criminal, penal nature are not only consolidated in the Code but also in laws, e.g. as we spoke of a Code on Drug Law, a law including drug laws with a need for reform including procedure. Briefly the committee concluded the real, existing need. Thus we agreed, with a wide presence of stakeholders related to criminal justice – as is required – and let’s now advance and search where the need exists. I took hold of Book 1, Title 1 of the Criminal code and now we may go into more detail and depth. We agree on consolidation so let’s do more detail. The pages I mentioned – even for those following in the media – on penalties and general rules are given here and I think that the prison Director here with us and even you, Janice, from Probation Services and also the Director of Criminal Court, Mr Sacco, who are directly concerned, especially you Mr Sacco, from a fines point of view though obviously not only. On penalties related to crimes, general provisions on emission and execution of penalties, on upwards and onwards movement in penalties, on the willingness and age of the guilty person, on crime attempt, accomplices, association and recidivism, this list is the major part of the Criminal Code.

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Is an evolving scenario, with the development of new substances, so it’s good for one to be proactive not reactive.

It is important that this fine scheme of illegal medicinals is amended quickly without ado for the authorities to come across a new drug, but if experts in the international field are telling you that a certain substance is appearing or evolving, we should be proactive by including it in our laws so that if the police catch someone with this, they would not have the difficulty of not seeing it included in the scheme of the law. I wish to make a general point. We have often been reactive not proactive; this was a big problem in our attitudes towards the justice and interior sectors.

Another big problem relevant to this motion totally, my whole speech and reasoning, is that each reform must be done holistically, not in a piecemeal fashion. One must look at the system totally. It was my first point yesterday.

I must also mention cultivation. Today’s situation is that a person caught cultivating a plant of 2cm, is automatically condemned to 6 months in prison. I said initially during my speech that we lawyers have a kind of work of applying laws to a particular case, interpreting the legislator’s intention, or his inefficiency or mistakes. Now in the case of Gisela Feuz, a Swiss student of about 12 years ago when I had just started my work as a lawyer, was caught with the possession of a little cannabis; did the legislator really want to send her to 6 months in prison? But at the time a person coming from abroad and has a drug, that possession amounted to importation, and as you had a prison penalty, she ended up getting 6 months in prison. As I said, we received immense bad publicity [361] about this, as she had no intention of trafficking but got 6 months in prison and then we changed the law. As I said, we react to a situation instead of being proactive. [362]

We now have the same situation regarding cultivation. [363] If a person cultivates one small plant – which is obviously an illegal activity -, even simple possession is

[361] Jurgen Balzan. ‘Lawyers demand changes to ‘obscene’ drug laws. – Penalty of mandatory, 6 month imprisonment on cultivation of small amounts cannabis ‘obscenely disproportionate’’, Malta Today 25th Nov 2013. ‘In 1997, Gisela Feuz – 16 year old Swiss student – imprisond on less than 1 gram of cannabis, prompted international furore and eventually led the government to sheepishly withdraw the stipulated mandatory prison term for importation.’

[362] Personal use of drugs should be treated as a social problem – Judge Bonello. As Holmes waits, call for drug reform intensifies’, JNews Portal – fused news report of the world, 26 July 2013, ‘However, unlike the situation a couple of years ago, the sentence is left to the magistrate’s discretion. The change came about in the 1990s after the case of a 16-year old Swiss student Gisela Feuz, who was imprisoned for less than one gram of cannabis.’

[363] Jurgen Balzan, ‘Jurgen Balzan. ‘Lawyers demand changes to ‘obscene’ drug laws. – Penalty of mandatory, 6 month imprisonment on cultivation of small amounts cannabis ‘obscenely disproportionate’’, Malta Today 25th Nov 2013. ‘Cultivation of drugs for personal use should no longer be considered as drug trafficking, lawyers Franco Debono and Gavin Gulia said to Malta Today. Criminal lawyer Franco Debono explained to Malta Today that currently, the law makes no distinction between cultivation for personal use and drug

120 illegal - She should not end up getting imprisonment for 6 months. In my opinion, this should be changed by a simple amendment where, as in the case of other drugs, there is a distinction between a person who has a drug for personal use, a person who traffics that drug, and a person who has the drug in such circumstances that show it was not for his exclusive use. Now it’s one case that you have one small plant and another case when you have 10 plants indicating they were not for one’s use only. There apply the general laws for drug law.

But you should not right away get a prison sentence due to cultivation. So if you have a joint with the same amount, you are found guilty of simple possession, but if you have a plant with a lesser amount, you are found guilty of cultivation with six months in prison. The present law makes no sense and must be improved. If you have cultivation of a small quantity, it qualifies as personal use, but if there are no other circumstances showing the substance not being for exclusive use, in that case you should be found guilty but condemned for simple possession.

Let me now come to big problems that are drug related. Firstly I disagreed with many propositions in the bill presented by Hon Carm Mifsud Bonnici without consulting the parliamentary group, as I would have expressed my opinions there. There was an environment proposition which has been removed from that bill, which led to a transposition of the EU directive, and it has now become law. But in substance, I did not agree with many propositions in that bill, and I shall say why. We are for example increasing the gravity of prostitution laws [364], but in my opinion this will solve nothing. While the issue of trafficking of persons is important and it’s good that it is addressed as it should be, in the case of prostitution, the main consideration should be the exploitation of these people, as well as the spreading of diseases, which is unfortunately not given enough importance. Harsher laws are sometimes good, but they may serve to drive the activity further

trafficking. ‘My client [Adrian Marmara] is facing a minimum of a six-month sentence after admitting to cultivating 3 small plants of cannabis which were clearly intended for personal use’, Debono said. Pointing out the lacuna in Maltese law, Debono said that anyone growing cannabis for personal use automatically faces a trafficking charge. Maltese law states that ‘dealing’ includes cultivation of drugs and does not give the court discretion as in the case of importation. The law says that importation of drugs is considered as trafficking ‘if the court is satisfied that such importation was not for the exclusive use of the offender’….the same discretion should be applied for the cultivation of drugs and explained that the changes in importation charges were introduced after Malta was ridiculed for sentencing a 16 year old student to prison for carrying 1 gram of cannabis while entering the country. Feuz was caught with just one Lm10 [23Eur] worth of cannabis and admitted to the police that it was to share with her partner. Her partner was freed from all accusations but she was imprisoned for a mandatory of 6 months after the court found her guilty of importing drugs with the intent of trafficking. Debono filed Constitutional cases to declare this proviso of the law as being in breach of human rights.’

[364] General Estimates 2012 – Votes of the Justice Minister and the Interior – Sitting 421 – Malta parliament 2 Dec 2011 – Hon Franco Debono said: ‘Prostitution was mentioned. In my professional career I defended loads of people in these circumstances and I can say that many of them are exploited and need pity. It’s good that we raise penalties but what does this solve It’s the easiest thing to do and we must concentrate more on the spread of disease and exploitation. Prostitution has always existed and I doubt if any system can destroy it.’ 121 Underground, unfortunately the exploitation increases and the issue of disease we are ignoring completely, I am sorry to say This issue of the spread of disease is one that deserves maximum importance. Thus I had reservations when we amended these laws. Let me make it clear that it’s the easiest thing, the easiest amendment for the legislator, to increase to harshen the penalties i.e. increasing 6 months in prison to 2 years. But if really one wishes to do things seriously, one must understand the problems and seek solutions. Solutions mentioned include the increase of penalties as it gives the impression of something grandiose.

In reality few or none are those who say that the 6 months have become 12 and refrain from committing a crime. That’s not the way it works. Often the problems are deep and require deep analysis for solutions. I repeat that in prostitution we are ignoring the issue of spread of disease both for the person who practises prostitution and the client. All types of persons have opportunities or places they frequent where prostitution may exist; thus this does not apply to a particular sector. But it’s a problem we have always ignored while looking elsewhere. We thus harshen the penalties and avoid the larger frame.

I now come to one of the biggest problems in the struggle against drug abuse – whuich is not dealt with in the Bill and I do not have any idea if it’s going to be discussed in parliament. I refer to the AG’s discretion on the drugs law. [365] it’s a very worrying matter. What does it mean? For those who barely know this sector, you may have a person caught with 10 grams of drug, and the AG may decide to send him before a magistrate, where the penalty for trafficking or possession of drugs not for one’s exclusive use, is from 6 months to 10 years; the AG may decide to send the person to a jury where the penalty may be from 4 years to life. [366] How does the AG come to his conclusion?

[365] General Estimates 2012 – Votes of the Justice Minister and the Interior – Sitting 421 – Malta parliament 2 Dec 2011 – Hon Franco Debono spoke of the vast discretion of the AG in drug cases. ‘One of the biggest problems we have in our system is the discretion of the AG in drug cases. I am not addressing the AG personally, as I respect him greatly and Dr Peter Grech is a serious man of integrity, but I am here talking of the system, the great discretion of the AG in some sectors. He can, e.g., that a person caught with 100 grams sent him to a jury and another caught with 500 grams before a magistrate.

It’s just an example but I believe that the AG should have discretion but he should be tied to explain his reasons in relation to the court. Apart from that we are here increasing his discretion on whether to arraign someone or not. It’s a good thing to amend matters related to a Drug Court, but not as suggested. With due respect, all this discretion is too much. We must have a mixed system with continental and British elements, using the best of both worlds. When they blend together, they blend well, but when they don’t there is tension.

[366] Bill to amend Act on Probation. – Bill no. 40 – Sitting 203 – Malta Parliament 22 March 2010 – Hon Debono explained the consequences of the AG’s great discretion in drug cases. ‘Another thing I spoke about last time in Parliament was raised by another paper, I think the Malta today, on the discretion of the AG in drug cases. The AG has the right to decide before which court an accused goes. It could be the magistrates’ court or the Criminal Court.

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This is where lies the problem, as firstly there are no guidelines [367] with no law to direct him and it’s a total discretion of the AG. It’s one of the biggest problems we have in drug law. [368]

I am not saying that the AG uses his discretion capriciously [369] but you have cases where persons are caught with the same drug quantities with one sent to the Upper Court and the other to the Lower. The result is that one gets a year and the other eight. Is this right? It certainly isn’t! You may tell me: ‘so the AG must not have discretion?’ yes, he does and he mostly uses it in a good way, diligently. I am not saying that there was some abuse, but that the AG is not infallible. I thus propose that the AG keeps this discretion, as you may have a person that’s caught with 10 grams, but then

What’s the difference? The difference is not small, as in one case the penalty may be much greater than the other. In the magistrate’s court, the penalty may be of 10 years maximum, in the case of drugs, while in the Criminal court, i.e. in juries. The penalty may range fro 4 years to life. Here we are obviously talking on trafficking cases or conspiracy or possession, not to what’s known as simple possession.’ [367] Till June 2012 when this was debated in parliament, there were no guidelines regarding the exercise of power by the AG. However, on 1 August2014, there were guidelines for the AG to have a direction in his exercise of power. In fact, as proof of the wide discretion of the powers enjoyed by the AG, there are recent amendments in the criminal code, especially Chap 101 by Act XXIV of 2014 and guideline for use of discretion in the 4th scheme [Art 22 Ordinance on Dangerous Drugs] which provide an attempt to address this discretion.

[368] House Select Committee. [Re-Codification and Consolidation of laws] – Malta Parliament – 11th Parliament – Meeting 32 of 23rd May 2012 – there was a long discussion on the vast powers enjoyed by the AG.

Chairman: ‘I think we agree on the fact that we should embark on this process. Let me conclude on the drug point. Some years ago, I had a student who was doing a thesis, asked me for some help, and I suggested that she studies this point more, i.e. the discretion of the AG. There were also Constitutional cases that were won, but my suggestion is that the AG keeps his discretion but gives reasons. Chairman. If the AG gives reasons, it makes more sense. It means that the AG sends a person before a jury, and in the same circumstances sends him before the Magistrates’ court, he would be guilty of discrimination. As things are today, I disagree. Why? Because the AG – I am not saying that he does this as I have all respect for him – the fact that he does not know everything, is capable of making a mistake. If you are obliged to give reasons, you will be more careful. It means that, as things are today - Dr Grech correct me if I am wrong – the AG may send Tom upstairs and Harry downstairs. Dr Peter Grech: As long as you don’t give the right of appeal from the AG’s decision. Chairman: Give the right of appeal. Why? Because imposing the obligation on the AG to give reasons, I say that one person is sent upstairs for a reason – because of this and that, thus substantiating his decision. Something needs to be done here. I understand the reason for discretion, it’s not capricious to have discretion, but it has to be circumscribed by something.

[B69] Bill to amend the Act on Probation – Bill no. 40 – Sitting 203 – Malta Parliament – 22 March 2010 – Hon Debono explained:

‘The decision of the AG may make a big difference. I have no doubt that the AG has always exercised this discretion wisely, but one must have safeguards so that decision is reasoned, to create a balance. I wish to go into more detail on this subject, but it’s not a matter for today’s discussion.’

123 There are ten witnesses who purchased from this person over 3 years. Thus cases go beyond the amount as it would be easy, as one would say that over a certain amount, it’s a jury and up to a certain amount, it’s the Magistrates’ Court; this is not such an easy thing. [370]

I suggest that while the AG retains his discretion, he has a duty to give reasons so that the person who felt discriminated against, may examine the AG’s decision, unlike what’s happening today. [371] As things stand today, when you do a Constitutional Case, you are told that this is the AG’s discretion. Incredible! [372] If I am not mistaken, a student

[371] This subject was later discussed in more detail in a Parliamentary Committee chaired by Dr Franco Debono. House Select Committee. [Re-Codification and Consolidation of laws] – Malta Parliament – 11th Parliament – Meeting 32 of 23rd May 2012 – there was a long discussion on the vast powers enjoyed by the AG and Dr Debono said: ‘Even at this stage – maybe a short parenthesis – there is a mention of drug laws, laws that all those working at the criminal courts as prosecutors or defence lawyers know what great amount of drug cases there are. But the drug laws are not to be found in the criminal code, both Chapter 31 as well as chapter 101, and one may propose their inclusion in the Criminal Code; we need to discuss this even if some agree with their being on their own. That’s one thing one must discuss i.e. whether they should be there but in a reformed version, amended; or if they should be included in the Criminal Code. Our direction should take us to reflect on this. Should drug law be part of the Criminal Code? Obviously, if we are going to think along these lines, we must also consider amendments as there are suggestions on the setting up of a drugs court. Dr Grech, I like to refer to the AG’s discretion as I believe – and this requires a wide discussion – that it is obvious that the AG has to have discretion – but he must also give reasons for his action as, I believe, is the case in England. I am saying this so that one may consider this direction.’

[371] Bill to amend Act on Probation. – Bill no. 40 – Sitting 203 – Malta Parliament 22 March 2010 – Hon Debono explained the consequences of the AG’s great discretion in drug cases – which should be tied to reasons given.

‘What is my suggestion? It’s one that I have already made in this parliament, i.e. while the AG has discretion to decide to which court he sends a person to be judged, he must give reasons. If I am not mistaken that’s the position in England. Some years ago a student doing a thesis asked me to help her and I directed her to do research in this sense. In England there is this discretion but reasons must be added to the expression of this discretion, thus increasing credibility before the courts while reducing the possibility of abuse. [372]However in recent sentences with Dr Debono as lawyer of the applicant, the court found that the wide discretion of the AG constituted a breach of fundamental human rights for an adequate hearing. Court in landmark ruling against AG’s discretion,’ Thetimes 21 Feb 2014.

‘The Constitutional Court declared today that the discretion enjoyed by the AG to decide whether drug cases should be heard before the magistrates’ or Superior Courts was a breach of human rights and the right for a fair trial for the accused. In a landmark judgement, the court observed that the AG was also a prosecutor, and his discretion to decide whether cases were to be heard by lower or upper courts had an impact on the punishment which an accused could receive, once convicted.

The declaration was made in two judgements in cases filed by Joseph Lebrun and martin Dimech, who are both facing accusations of drug trafficking. Mr justice Anthony Ellul said that while the Criminal Court had sentencing parameters, the AG had been given wide discretion to decide which minimum sentences should apply when there was a conviction. The discretion had been given even though the AG was the adversary of the accused. The principle of the rule of law and fair trial should not permit this interference in the administration of justice. Lawyer Franco Debono said he would appeal as the court, while finding a breach of human rights, had not offered a remedy to the accused.’

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O, today a lawyer, Mariella Said, did her thesis on this matter and I believe she had come into the English position where also the AG has discretion. [373]

I am saying that the AG should have discretion and this also in the context of what I said in the reform [374] of the Office of the Attorney General where the discretion of the AG needs also to be revised while he must have the obligation to give reasons and thus one is creating a balance. In this way, one would have no allegations of discrimination, maybe it’s just a perception, even if not true, but this is one of the biggest problems we have in drugs law. [375]

In a recent sentence in the names Jean-Pierre Abdilla vs AG Civil Court First Hall [Constitutional Jurisdiction] 24 June 2015 – Hon Judge Silvio Meli – Application No. 28/2014, actually subject to appeal, the following was decided: That as regards the expressed decision of the AG, it is to be considered that: 13.1. It is a principle of justice in its widest form, that administrative discretion must be based on public reasons subject to independent examination: 13.2. That the lack of such an objective examination goes against the sovereignty of law and sends back the clock to a reintroduction of an inquisitorial system that Malta has long ago placed in history more than a century and a half ago; that in view of the premise this court is satisfied that the applicant proved his case partially, in fact, that considering the discretion of the AG in question and the lack encountered in the statements taken from the suspect, presently the applicant, his fundamental rights, as he expressed them in the promoting application were effectively breached; In its decision the Court emphasised that ‘It declares that were breached the fundamental rights of the applicant considering that the action of the AG and the Investigating Police analysed above, contaminated the subsequent procedure and thus affected the fundamental rights of the applicant as described in articles 5[1][a], 6,7 and 14 of the European Convention mentioned above, and in articles 34[1][9b] and 39 of Malta’s Constitution.’ Former police officer had rights breached,’ Times of Malta 2nd July 2012 – ‘A former police officer serving a 16- year jail term for drug trafficking was awarded Eur1000 in compensation after a Judge found that he had not been given a right to remain silent before he was interrogated. Mr Justice Silvio Meli found that Jean Pierre Abdilla’s human rights had been breached when he was not cautioned prior to his interrogation. The court also ruled that the AG’s discretion to have Mr Abdilla face trial by jury instead of appearing before a magistrate and the fact that he was not granted access to a lawyer before interrogation also violated his fundamental human rights. Mr Abdilla had been found guilty of 2009 of trafficking heroin and being in possession as well as of protected birds and reptiles. In addition to imprisonment he was fined Eur400,000.’

[373] Mariella Said, A Historical-legal Analysis of the Treatment of Juvenile Delinquency in Maltese Legislation,’ LLD Dissertation 2004/5, Faculty of Laws, University of Malta. [374] Adjournment of Hon Franco Debono – Excerpt from Sitting no. 474 – Malta Parliament – 16 May 2012 – Hon Debono several times mentioned the need of reform in the role and function of the AG. Hon Debono sid: ‘I want to live in a country where the AG has the powers, the role and functions reviewed as in our system, hybrid system, as it contains parts from both the continental and British system, he is the government lawyer, the Public Prosecutor and sometimes creates bills he is part of. A whole revision is needed of the AG’s Office, and I wish to live in a country where this reform happened years ago.’ [375] Votes of the Justice Ministry and the Interior – Sitting 56 – Malta Parliament – 18 Nov 2008 – Hon Debono from his first year in Legislature, expressed reservations regarding the wide discretion of the AG and proposed the retaining of this discretion along with giving reasons for his decisions so as to keep due balance. Hon Debono explained- ‘One of the aspects involving discretion in a system of progressive democracy, as much as possible there must be a reduction of the discretion of the executive and all who make decisions, that reasons are given. I believe that the drug law needs fine tuning. I took a lot of time at my disposition to answer interesting points raised by my colleague, but on drug law I wished to make a small point. Where do we find that the AG has a discretion – though responsibly of sending to the upper

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The second crucial point. In the Bill presented before this parliament it was suggested that a person may be given a warning without arraignment in court etc. I beg to differ with this set up, my reservations are not great, i.e. if we agree that this set up, I find no objections. But I have suggestions as we are a small country. I remember when I started, there was still magistrate, today judge, Noel Cuschieri, a very good judicant whom I can only praise. It was the same regarding Judge Quintano and today there are Mag Marsanne Farrugia, Edwina Grima and Myriam Hayman who do drug cases.

This is my suggestion. Our law allows a warning given by the AG. As I said, the discretion of the AG must decrease not increase as he already has wide discretion, the increase of which will allow him to warn some persons and arraign others. The, we shall start saying that a certain person got a warning as he is someone’s son and another person was arraigned as he knew no one. And so on and so forth. If we increase this discretion instead of decreasing it, it’s a bad step. Some persons will get a warning and others are arraigned. On paper it may look attractive while in reality it creates problems.

or send him to inferior court; the difference is drastic and big in penalty. One must consider, as in England, that this discretion remains in the hands of the AG, but at the same time, he gives reasons for his action. In this way, a certain uniformity is established that the principle and the requisites is an element making the justice system acceptable, advanced and in the best interests of society and democracy. Let me now come to the matter of appeal by the AG. Indeed these have increased as the grounds for appeal have increased. Maybe until there was a period of transition and until the situation strengthened there may have been some problems, though things are more stable now. There was also an intervention from the Chief Justice, saying that there is today a new law system with a better balance.

The same proposition he repeated in the Speech of the Bill which implements Measures that are required for the Estimates being considered – Bill no. 34 – Sitting 187 – Malta Parliament – 1st Feb 2010 – Hon Debono emphasised.

‘I was distinguishing between the inferior and superior courts, in the criminal court. I stressed on the difference in penalties between drug crimes. If the AG decides to send a person to inferior court, the penalty is between 6 months and 10 years, but if he sends him to criminal court the penalty is different. All depends on the absolute discretion of the AG. I have no doubt that he exercises his discretion reasonably, justly and wisely, but the time has come – as I had encouraged a thesis student to delve into this subject – that the AG gives reasons for deciding to send a person to inferior court and another to superior court. We must also consider this. I had the opportunity to speak to a Minister of Justice on the possibility of doing something in this direction.’

[376] Dr Debono re the AG’s vast and intangible discretion, spoke of the Bill actually giving more powers:- ‘Franco Debono warns he will not back the government unless ministry is split immediately,’ Timesofmalta.com, 21 Nov 2011, ‘He stressed today that the government needed to shelve proposals made in a recent Bill moved by the Minister of justice which he said, would give the AG wider discretion in the exercise of his judicial power without giving any reasons and without the safeguards afforded to judicial decisions. I do not and will not tolerate shifting of goalposts or deceit,’. Dr Debono said. I hope everyone has realised the situation in justice and home affairs for very urgent action. Over the past years, he said, matters had degenerated.’

126 I believe that there should be a court session which today does drug cases which examines the situation of first offenders with a simple possession. In our law, we already have a system of warning, as well as reprimand and admonition. I feel we may use today’s structure. I have no reservations on whether it will be the AG who creates this system, but it would be a better system if it had reprimand and admonition, warning which is what the AG will give. You have a better records system, as you may access police records, without inclusion in criminal records – like a penalty for contraventions. So let’s keep our system but let us also set up the drugs court including the participation of psychologists, social workers, probation officers etc. To a certain point, this is already being done and persons in this situation get a conditional discharge or probation. Thus we have a closer system already. [377]

But I believe in a holistic system – not in a fragmented one – while keeping the R & A. A first timer would get an R & A and also a rehabilitation system close to what there is now in the courts.

Sometimes we act as if we have created something new, but in fact a magistrate may order you to follow a rehabilitation program and sees later how you have been doing. To an extent, these things exist already but I have also been saying that a consolidation initiative is added to join Chap 31 and 101. And I believe there is a legal notice 1931. If you see the accusation on possession, there is a whole paragraph full of complications that my be simplified.

The time has come for this distinction – done today in sentences, in jurisprudence but not in law – between hard and soft drugs, i.e. between heroin and cocaine and soft drugs i.e. cannabis. Penalties under our law are the same. In reality, our courts distinguish – sentences given for Cannabis and one may say, for synthetic drugs are slightly less than for hard drugs. But I believe that one may explore the possibility that this is reflected onto a legal instrument.

15. Steps taken so that the document emitted by the Chamber of Advocates ‘Regulating the legal profession in the 21st Century’, which would regulate the legal profession, discussed, analysed and implemented by a law;

Let me pass on to point 15 which states:

[377] Calls by Hon Franco Debono for setting up a Drugs Court, also reviewing drug laws.

Private Members Motion No. 280 – Motion of Hon Michael Falzon and Hon Jose Herrera on Reforms on justice and Home Affairs [No confidence in Justice Minister Hon Carm Mifsud Bonnici] Sitting 483 – Malta Parliament 29 may 2012 where Dr Debono stated: ‘In my private motion, a proposal mentions the setting up of a drug court to review drug laws. Aren’t drug victims also children? We promised to address children’s problems, but we must consider all children not only those with no problems. That’s easy. Did you organise matters? Those who are caught are penalised.’

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Concrete steps are taken so that the document emitted by the Chamber of Advocates ‘Regulating the legal profession in the 21st century [378] that still regulates the legal profession, is discussed, analysed and implemented by law.’ [379]

To me and any lawyer who likes his profession, this profession is the best in the world. [380] I studied science subjects in secondary school, but when deciding on my future work, Hon Herrera says that he is obsessed by the profession and you too, colleague, having known you for 12 years at court, we meet there daily.

Mr President, I salute Hon Herrera who is in front of me, but also famous lawyers like Giannella Demarco, Manuel Mallia, Joe Giglio, Michael Sciriha and others, who at the start of my profession [381] I

[378] Regulating the legal profession for the 21st Century – A consultative Document , 2008. Chamber of Advocates, The Law Courts, Valleta, Malta. ‘This is a consultative paper prepared and distributed by the Chamber of Advocates, Malta, to its members for the purpose of consulting its members on the future regulation of the legal profession.’ ‘Franco Debono, ‘Essential legal and Administrative Reforms,’ Times of Malta, 12th October 2011. ‘The Chamber of Advocates consultative document – Regulating the Legal profession in the 21st century – must be discussed and implemented,’

[380] Votes of the Justice and Interior Ministry – Sitting 56 – Malta Parliament – 18 November 2008 – Hon Debono stated: ‘We heard about the matter of the initiative that we have our profession – called a positive initiative by Hon Herrera, which to me is the best profession as well as an art so it should be regulated. I agree on some aspects. Let’s not forget that nothing is definite and this document stimulates discussion. In general I believe – without entering specific points – that it’s a positive thing that the chamber of advocates stimulates such a discussion. It’s certainly not desired that the legal profession contains aspects that are not regulated by law and thus it’s important that this action is taken. These were the points I made in reaction to my colleague’s.’

[381] Private Members Motion No 280 – Motion by Hons Michael Falzon and Jose Herrera. On Justice and Interior Ministry Reform [No confidence in Hon Minister Carm Mifsud Bonnici] – Sitting no.483 – Malta Parliament 29 may 2012 where Hon Debono said that when he started legal and political career with nobody’s help, the difficulties are great but make you more combative and determined:- ‘In my legal and political life, I advanced on my own. It’s nice to have support from a dad in law and politics. Reference was made to his grandfather and father. Isn’t it nice to have protection and a prepared bed? It is helpful to have a word put in, to write an article for you, to draft a law for you perhaps. But let’s not hear that we have dignity due to our family, Minister. I made progress professionally all alone, with my humble family’s help; they supported me, sending me to a private school and I went ahead.

I also found things hard to get used to…I started in 2000 and some time later, our justice system suffered the most serious earthquake ever. I will not mention why the persons were paid, but to start in a court where this earthquake took place, is not easy when there is no one in your family. I did suffer, you know, and the Minister must understand that I am in pain. More than in pain, more than him and his family am I hurt. We are now at a point when you have no right to suffer! I am easily offended and I attribute ulterior motives, psychological and moral violence; people step on your feet, break you and if you shout ‘ouch’ they beat you some more. Tht’s our present situation. And I arrived where you have arrived, Minister. Regarding psychological violence I wish to say that I am strong and truth made me stronger, as I always struggled alone as I am used to it, and will continue doing so. I will not give in and will remain consistent.’

128 learn and observe a lot from senior lawyers whom I respect a lot. Obviously then, you have to develop your system without forgetting your early professional years. They were difficult years to be able to get into the criminal cases which had good lawyers, with a certain reputation, a name, in any case, thank God I made progress, as my colleague said, the great love you have for the profession. [382] it’s a very beautiful profession. In the paper The Sunday Times of 11 Sept 2011, I had written an article ‘A Vision for justice’ [383] to which I have already referred, where I said:

‘A respected and alert legal profession, zealous of its submissions to instigate judicial interpretation of laws has a crucial role. Years ago, the Chamber of Advocates published a consultative paper titled: ‘Regulating the Legal profession for the 21 st Century.’ Entry requirements for the law courts should also be made more onerous.’

I come now to another point: A respected and alert legal profession, zealous of its submissions to instigate judicial interpretation of laws has a crucial role. In the House Select Committee [Re-Codification and Consolidation of laws] we are also working on the consolidation of penal laws and when I had the opportunity to invite Dr Michael Schiriha in this committee, said something that really struck me: ‘A strong legal profession means a strong citizen.’ [384] Dr Michael Schiriha has a habit of making these short and sweet statements which provide plenty of reflexion, Upon reflection, one finds that it is true that a strong legal profession means a strong citizen. This Chamber of Advocates document made 2, 3 or 5 years ago, ‘Regulating the legal Profession for the 21st

[382] Private Members Motion No 280 – Motion by Hons Michael Falzon and Jose Herrera. On Justice and Interior Ministry Reform [No confidence in Hon Minister Carm Mifsud Bonnici] – Sitting no.483 – Malta Parliament 29 may 2012 where Hon Debono said again that he had started this profession so competitive all alone. Surely this fact contributed to the creation in him of the determination and perseverance which are characteristics that distinguish him.

‘As I was saying, I was also like this as a student, hardworking. In the profession, I advanced on my own, nobody helped me, but here you are told to calm down and not to hurry. Allow me to work as this country needs hard working people. Let me work if my ideas are good – and everyone thinks so – don’t harass me, don’t harm me without any reason. It’s a psychological and moral beating. Let me say what psychological violence consists in. What did they do? A reshuffle was coming and what did they do? Three days before the reshuffle, they emitted the GRECO report, which they knew not to be my law, so it would reflect badly on me. That’s psychological violence! That’s immorality! That’s condemnation! What had I done to them? I declared right away that I had nothing to do with it. That’s why they emitted it three days before the reshuffle. As they are not immoral!’

[383] Franco Debono ‘Vision for Justice’, Times of Malta 11th Sept 2011.

[384] House Select Committee. Chaired by Hon Franco Debono[Re-Codification and Consolidation of laws] – Malta Parliament – 11th Parliament – Meeting 33 of 28th May 2012. Among the distinguished guests, there was Dr Michael Sciriha who said: ‘ The thing we should tolerate least is when a lawyer is somehow intimidated. The legal profession is already risky, already dangerous, so the worst thing is for a lawyer to be intimidated, prosecutor. And in this sense I tell you an important thing. When our courts had judges spending the day terrorising lawyers, I doubt if justice was done, neither by the prosecution nor by the defence. Thank you.’

129 Century is important. [385] I also know that discussions are being held on this which obviously had started before my motion.[386] But, as I said, either nothing was being done about these things that were too slow and thus that was the aim of the motion. Let us implement this document after a discussion as it also has controversial things, with which one may not agree, though things are moving. This is well and good as it’s important that this takes on the strength of the law, in order to reflect the realities of our profession in 2012. The law profession must have its dignity. It must not be intimidated, neither by the Minister, nor by the Chief justice, nor by the judicants. [387] The legal profession must be jealous to stand for the rights of clients, of the citizen. One cannot expect that in a court hall, one can relax as if watching a film sitting on a sofa.

When I once clarified laws to be included, I was accused of having attacked a Minister! Absolutely this was not true. I made it clear that I had nothing personal against the Minister, but I was making a constitutional reference. The case that was made regarding the appeal from bail had also been won at the Constitutional Court [388] and

[385] Regulating the Legal Profession in the 21st Century’ A Consultative Document , Chamber of Advocates, 2008 3.1.3 The need for a strong legal profession. ‘A strong, credible and respected legal profession is a must in any civilised democracy and is therefore also a matter of public interest that the legal profession’s strength, credibility and integrity are sustained through all means possible. Professional integrity and competence are central for the profession to retain a robust position within society. With a profession growing in increasing numbers annually, with a changing economic and social environment where some advocates seem to mistakenly deal with their profession as a business and where ethical values and standards of integrity are no longer as common between members of the profession, there is a cogent case for a different form or regulation for the profession. The idea of continued, exclusive self-regulation can no longer guarantee the regulation of the profession.’ [386] Adjournment of Dr Franco Debono – Excerpt from Sitting no. 474 of 16 may 2012. Hon Debono many times insisted on the document emitted by the Chamber of Advocates. ‘A drug court must be set up with a revision of drug laws. The Chamber also published a document: ‘Regulating the legal profession for the 21st Century.’ These are some of my suggestions six months ago; the legal profession must be regulated.’ [327] Private members’ Motion 280 – Motion by Hons Michael Falzon and Jose Herrera on reforms in Justice and HomeAffairs [No confidence in Minister Carm Mifsud Bonnici. Session 483 – Malta parliament 29 May 2012 – Hon Debono said that the legal profession must not be intimidated by the judiciary in its duties. ‘The lawyers said that the legal profession is strong, and I thus ask them: ‘It’s been said that the Chief justice and the AG are like lovers. This is very bad in a society where the judiciary must not intimidate the legal profession. I was told by Minister Said – who spoke to me but let’s keep this aside –as I respect him a lot – that a strong legal profession means a strong citizen. We have this matter of fining people.’ ‘I understand the way he said it, but there were cases when a lawyer goes out of a hall, a case is done without you and you may be guilty of contempt as you are in another hall. It’s bad to intimidate lawyers. Yes it was and still is intimidated. If you raise constitutional cases on the government, lawyers must not be intimidated.’

[388] ‘Debono – Ministry was split in the wrong way. MP silent on voting intentions; ‘no pending votes before parliament’ Times of malta.com 23 April 2012 – ‘Regarding last week’s Constitutionl Court Judgement extending the right of the accused to appeal from bail decisions, Dr Debonosaid laws should not be amended when fundamental human rights are breached, but right should be granted independently of whether the situation was in breach of fundamental rights. A democratic system. A democratic system was not health if it had to await a declaration of breach of human rights in order to change the law.’

130

Is in a stage of appeal. Obviously if you have an arrested person who at the time had a moribund mother with present laws discriminating – I did a constitutional reference as there is obviously a human element. Don’t expect a client defending his client as if watching a film on a sofa or at the seaside! Lawyers must be dedicated, with initiatives, fighting for clients’ rights, especially where our laws need a progressive injection. Mr President God forbid we have a lethargic legal profession, scared of raising points. A legal profession must not look scared, intimidated, not seeking judiciary interpretation. With respect, not should it happen that after I raise a legal point regarding the Minister’s lack of Emendation of the Electromagnetic Recording of proceedings Act [389] to set up digital recordings, and as I was sick at home swallowing antibiotics, [390] a lady magistrate makes a lot of fuss. It was I who pushed for the change of tapes [391] we move to CDs for the recording of witnesses in court. It was I who pushed it! [392].

[389] No confidence motion in government 49 Malta Parliament – 25 Jan 2012 Hon Debono declared that the Minister did not change this law.

‘Mr President, in this digital era, we have a democracy that works by radio; I had to be the one to do PQs and pressure or we would still be using cassettes in Court. Parliament uses radio and the courts use cassettes in an era of pen drives, i-pads etc. Things would be more efficient as these are small details that would not require me to come here and speak of cassette tapes and radio. These are not cosmetic changes but reflect the state of institutions itself. After my pressure to change the cassette tapes in court to a more modern, safer system, facilitating court work, for the benefit of one and all at Court, the Minister did not try to change the law that’s related to Electro magnetic Recording of Proceedings Act. And I regret this as, initially I defended Minister Carm Mifsud Bonnici on the right to a lawyer, but then there were comments in The Times which I did not like: he said that this right was not important and that he had agreed with the opposition etc. I had made an effort not only for the system to change the old system of cassettes in 2012 – with some halls still using cassettes – but as a lawyer I had to raise a legal exception, as is my duty, and the law did not cover what was requires as it changed the method but not the law.’

[390] ‘Lawyer explains absence from court in relation to the case continuation.’ Timesofmalta.com 5 Sept 2011 – ‘Mag Claire Stafrace Zammit was considering a point raised by Dr Debono last week about whether court proceedings recorded by digital means were according to law, when informed that Dr Debono was away sick. Then she was told that he was on the phone. Mag told deputy that Dr Debono should not expect that she interrupts a court sitting to speak to him on the phone, as this was unacceptable.’

Last week Dr Debono said that, unless the law was changed to allow court hearings to be recorded digitally, proceedings could be declared null since the law only referred to recording on electromagnetic tapes. This morning the court heard evidence by Christian Barbara, member of the IT administration of the law court, who said there was no difference in the functions of recording on tape or dignity [on SD cards], but the latter more modern method saved a lot of storage space. Lawyer Jose Herrera said the law needed to be changed and the government should do so, even retroactively, so there would be no problems regarding trials. ‘At no point in time did I ask to speak to the Magistrate’, Dr Debono insisted. He added that the continuation of the court case was ‘unacceptable.’

Every accused had the constitutional right to have his lawyer present at all times during a trial, he said.’ [391] PQ 1664 Malta Parliament – Hon Franco Debono – Since 2010 Dr Debono has asked Justice and Home Minister: ‘Can the Minister say if there is an intention

131 Even Parliament still used radio to broadcast sittings but luckily now the committee I chair – with Hon Herrera as member – abstained for the first official live video streaming of a House Select Committee. [Re-Codification and Consolidation of Laws].[393] Now, Godwilling, we proceed with the same process in the other committees, with your help, Mr President. As you know, this started on my initiative after the PM wrote to you about it. [394] I thank you for your great input

to change the recording by cassette tapes to substitute by a modern system Has an estimate of cost been done? 27/04/2010 – Hon Carm Mifsud Bonnici: I inform the Hon questioner that a research is ongoing on various systems locally and abroad so we adopt the best system. It’s calculated that these systems cost Eur 130, 000 for 24 halls. Sitting 214 – 4/5/2010. In various parliamentary speeches Dr Debono spoke about an urgent need to change the cassettes tapes in halls. At one time, he had these comments on the archaic system.

Adjournment Hon Franco Debono – Excerpt from sitting no. 105 – Malta Parliament – 28 April 2009.- ‘Since I am mentioning this aspect, I wish to make 2 other suggestions. Firstly it’s difficult today to see tapes as when I was younger. But in our courts there are still these tapes. Today, sittings, hearings, witnesses are still recorded on tapes. These hardly exist today due to the use of CDs. Due to today’s advanced technology, judicants deserve a modern system. This means a better system – not something extraordinary. It need not be a state of the art system but a better one than tapes.’

[392] Bill that amends various laws on Criminal matters – Bill no. 45 – Sitting 206 – Malta Parliament 19 April 2010 – Hon Debono in various speeches had spoken on the need for the recording system by tapesmust be changed.

‘I doubt today if you can still buy tapes. Dr Herrera who is laughting knows this. Auditions in our halls are still done on tapes. I wonder where they buy them. Today’s advanced system uses CDs and these tapes are not practical for judicants and staff so the system must change.’ In the motion of no confidence in government – Sitting 49 Malta Parliament – 25 January 2012 Hon Debono passionately said: ‘Mr President , in this digital era we have a democracy functioning by radio and if I hadn’t made PQs and pressure, we would have a court that still uses cassette tapes in an era of pen drives and i-pads etc….as I am not an expert in these! If these were small details working beyond good things, I would not be here talking about cassette tapes and radio, but unfortunately they are no cosmetic details bu an indication of the present state of the institutions themselves,’

[393] House Select Committee. [Re-Codification and Consolidation of laws] – Malta Parliament – 11th Parliament – Chaired by Hon Franco Debono - Meeting 27 of 23rd March 2012 – there was a long discussion on the impending live video streaming and hd the following to say on this development:

‘If we have the honour of your presence in the next sitting, I encourage you to groom your hair and straighten your tie as it may be live video streamed. I insist that this is important to me that Parliament has the best communication systems and I have been for years repeating this. Indeed this development will bring Parliament closer to people. Last year we celebrated the 90th year of the setting up of this Parliament. Of course, it would be a good thing to test these means so as to adjust the new parliament. One must thus examine this experience and adjust wherever necessary, following which experience the result would be based on what one has learned.’

[394] John Busuttil, absent from Parliament but present and relevant in reforms,’ – An exclusive interview with Franco Debono, Malta Today, 9th June 2015, ‘But the happiest person in that about which

132 as long as you have been occupying this role in Parliament; I sincerely and genuinely thank you for the great effort you are doing to elevate and raise the dignity of this institution. I am not being rhetorical and I genuinely wish to thank you again for the great, genuine and important efforts you are doing for this parliament. [395] I think that even the people appreciate this through the publications that you are making to create respect in the people towards this institution. I think we are traversing a thought revolution on the role and function of this democratic institution. [396]

He had been talking took place i.e. parliamentary sittings would be broadcast on television. ‘I wanted this so that those deputies working in parliament to transmit a message and propositions to push, can work in Parliament, giving it the dignity it deserves while the people may analyse and evaluate matters before an election. The people can follow things that interest it on their life in the country. If television existed in the last legislature, the people would have listened to proposed reforms. I had once remarked that unfortunately we had a limping democracy – a parliament using radio and courts using cassette tapes. I had also asked if parliament could broadcast directly debates from parliament. Bickering and insults lowering the level of parliament. Before the people’s very eyes. Television is an instrument that may save or hang you. However a hard-working deputy will surely be seen. The people watch what interests them, good or bad and then choose, but at least they may see – good or bad.’

[395]House Select Committee. [Re-Codification and Consolidation of laws] – Malta Parliament – 11th Parliament – Chaired by Hon Franco Debono - Meeting 31 of 13th Feb 2012 – there was a presentation of the First Bill on the Administrative Code. Hon Chairman said: ‘I cannot avoid noticing today’s historical value in Parliament. I think it’s the first live steamed sitting on internet, on test. It’s very important to me, a historical event, as the highest institution in the country representing the people, deserves the best. Both my colleague David Agius as well as the Opposition’s whip, Hon Joe Mizzi, many times spoke about this. Also many deputies spoke of the importance of such progress in parliamentary communication. Not for me but for the people in whose name we administer, actually it’s the government who administer and we represent.

I think it was early last year that the PM wrote to the Speaker, copying me, in that email – and I already commented about this with the PM’s permission – that this initiative started to have better parliamentary communication. It’s a very important event – especial since we are at a period of celebration 90 years of Malta’s parliament – which deserves keeping up with the times in technology and communication. Our country strives from a high level of informatics. I don’t see why the people can’t see what its representatives are doing in parliament, judging their behaviour and performance. I thank Speaker Michael Frendo and praise his work and duty, continuing after previous valid Speakers, adding energy and commitment for the advancement of parliament where lots need to be done.’

[396] House Select Committee. [Re-Codification and Consolidation of laws] – Malta Parliament – 11th Parliament – Chaired by Hon Franco Debono - Meeting 37 of 18th June 2012 – there was a presentation of the Consolidation of Electoral law, Political parties and their Financing. Hon Chairman Debono said this was the first official session video streamed live on internet. Let’s come to today’s meeting.

I thank you for welcoming this committee’s invitation for today’s session that is historical for 2 reasons. Firstly it is the first session to be video live streamed on internet of a parliamentary Committee. It already had this as a test. I like to say that this development brings Parliament closer to people. It is thus an important step. It is also historical as after long years a parliamentary committee will finally be discussing party financing. I think that the last time parliament discussed officially or rather only presented a report- the Galdes Report - was between 1994 and 1995.

133 As I was saying, I raised a point before a magistrate and then stived for the use of digital recording in court and not electromagnetic. [397] Is the court a support for the Minister? I ended up being severely criticised for not going to court as I was on antibiotics. Lawyers must not be intimidated. It has a fundamental role to do to create a balance so we avoid having a police state. The legal profession has a role to serve and many judicants respect the legal profession. It is also a bad practice that, following 2 hours waiting in one hall, you end up not coping with a case another hall. However many judicants are reasonable with lawyers. Then the client will complain that you did not appear for him or end up with a verbal note when you have actually been there. Is this the lawyers’ fault? Certainly not as it’s the system’s fault. Layers and people are penalised and all have the right to justice; even inspectors are penalised as sometimes you call an inspector from a hall and he has to leave Police HQ to come over though he has an arrested person being interrogated. [398]

Mr President, if the system is good, then you may penalise those who do not abide by it [399] not appearing in Court. [400] but, with due respect, the legal profession must not

[397] ‘Court evidence being digitally recorded ‘Times of Malta’, 6th July 2012. ‘Dr Debono said the law should now be amended to reflect this development.’

[398] Hon Debono argued that this point brings difficulties in practice for lawyers and inspectors. In the Bill amending various laws regarding criminal matters – Bill no. 45 – Sitting 206 – Malta Parliament – 19th April 2010 Hon Debono proposed a solution aiming to address this problem: ‘Since we are talking on the criminal sector and about the court – and comments on this were made by the Justice and Interior Minister – I think that the time has also arrived to refer to the PA system. If you have a person called from Hall 2 to Hall 3 while perhaps smoking a cigarette outside, or some other need, does not know he was called. It happens to lawyers too. Today’s court premises are bigger and if you are at family court and you are called at ground level before a magistrate, you can’t tell if you are called. Thus a case may be done without your knowledge and it creates difficulties. A PA system is thus needed, but let me concentrate on a particular element of this Bill: Private members’ Motion 280 – Motion by Hons Michael Falzon and Jose Herrera on reforms in Justice and Home Affairs [No confidence in Minister Carm Mifsud Bonnici. Session 483 – Malta Parliament 29 May 2012 – Hon Debono- ‘You have an inspector wasting hours in court – as twice per week there is a bomb scare – and he has a client of mine under arrest. You tell him ‘Listen Inspector, go speak to him. He answers: ‘But I have Court duty. If I leave, I get a fine.’ The other one for 6 hours has not been spoken to. That arrest is illegal. A disastrous system. With due respect!’

[399] House Select Committee. [Re-Codification and Consolidation of laws] – Malta Parliament – 11th Parliament – Chaired by Hon Franco Debono - Meeting 33 of 28th May 2012, where this issue of fines was debated in this committee: Chairman: ‘I take a point from what Hon Herrera said. Obviously we are discussing the consolidation of penal laws. One cannot ignore comments by Mag Carol Peralta whose long years of experience made him judge in an International court and thus his comments have a certain weight. Why? As he has left the system, moved to another and now came back. It gives one the opportunity to identify short comings when comparing a system to another. It’s the same thing for a new person in parliament. A member who has been there 20 years does not notice things that are noticed by a new member. I agree with you and feel the the comments of the Justice Minister were in good faith, but quickly fining people solves nothing as often the absence of a person from a hall can be justified and a result of a wider bad system. Let me mention two examples. If a lawyer is in another hall you have ten

134 be intimidated by anyone – and I talk in general – neither by the Minister, nor by the Chief justice nor by any judicant. I repeat that many judicants are reasonable.

I have in 12 years seen lots of respect, as it must be, towards us lawyers as Court officers, as ultimately we are Court officers doing our work there. Like a person working in hospital or elsewhere, that’s where our place of work is. I talk about lawyers as obviously point 15 is related to us. [401] But I repeat the words of Dr Michael

cases at 9 am, you have to go from a hall to another and Dr Herrera knows what I am talking about. When you have many cases during the same day, you end up quarrelling with a client whom you have unintentionally abandoned while in another hall. In reality we are already penalised as magistrates usually understand when you leave their hall and allow your client to look for you in another hall, when they have lots of work themselves; these problems are related to a lack of logistics in the system. So the lawyer must not be penalised or the inspector finding himself in this situation. If you wish to penalise me, first arrange the system. Chairman: I wish to add something before ending and then I give the floor to you, Dr Sciriha; it regards something happening this morning and concerns in inspector who has arrested people as there is no separation between the investigative and the prosecution.

They have to arrest a person at 8 am, comes to court thinking for an hour and calculates the time passed from arrest to the rest of the procedure, hoping to do four cases in between. If he takes two instead of one hour, the arrest is illegal as an inspector cannot arrest a person and let him wait for hours before interrogation; it also happens that you speak to him and find nothing. So what to do? If he gets a call related to an impending arrest, will you find time to speak to him? And, if so, will he be fined for not being in court? Whoever allowed for the system to be deficient must fix it without blaming lawyers, inspectors and magistrates who work in a deficient system. But to be honest, all is not wrong but there’s a lot to arrange.

Chairman: Hon Zammit Dimech, I happen to be informed that a certain lawyer was fined Eur500… Chairman: I agree with you that a motion is ongoing at plenary; it’s another thing and we must focus on codification and reform as we are doing. You remember when we worked on an Administrative Code. During preliminary meeting, this is the background of what we are discussing, and since there was an interesting comment by a judicant who then commented on the Justice Minister while the latter’s comments were bona fede though it served as a spark that reveals the deficiency of the system which is not as simple as giving fines, To give the main ideas from this committee, you must arrange the system’s many deficiencies; and then there is the top of an iceberg, related to when the system works though not excellently; after that, whoever is absent deserves a fine. However fining when the system is not reformed and before all improvement efforts is quite immature. Our present discussion is indeed relevant to this matter. We may even get to the heart of the problem…’

Private members’ Motion 280 – Motion by Hons Michael Falzon and Jose Herrera on reforms in Justice and Home Affairs [No confidence in Minister Carm Mifsud Bonnici. Session 483 – Malta parliament 29 May 2012 – Hon Debono said that it results from yesterday’s session the message that one must not fine people before improving the system and cases must not all start at 9. Judicants obeyed right away and some were fined Eur 500. The committee proposed that definitely the system must change.

[401] ‘Votes of Justice and interior Ministry –Sitting 56 – Malta parliament – 18 Nov 2008 – Hon Debono spoke of his love of the legal profession-

‘Let me now come to categories I mentioned separately. Let me start with lawyers. We heard about an act to regulate the legal profession, and this is a positive step, which must be encouraged and participated in

135 enjoys my great respect also when saying: a strong legal profession means a strong citizen and this profession must show enthusiasm for the interpretation of laws.[402]

When the right to a lawyer for the arrested person was not being given, thus a fundamental right was being breached, I fought it out in Court. Surely my colleagues too. I thank lawyers before me from whom I learned a lot. I sincerely also thank the Chamber of Advocates which is supposed to struggle for lawyers’ rights. Today’s president enjoys my total confidence and it’s a good thing that his speeches promote lawyers’ conditions. The role of president of the Chamber of Advocates is not a stepping stone for the judiciary as whoever was nominated deserved it not due to good relations with government . I’m not saying that this happened but that it must not. The President’s role is to defend the legal profession. If the legal profession is offended the President or the Chamber must defend it, taking a stand to protect the prestige of the profession, which we love so much and was formed by famous persons like Guido De Marco and many other lawyers who preceded us, al of whom struggled to give the legal profession the dignity it deserves.

Mr President, as I was saying, a judicant, even by absent mindedness, penalises you, not knowing you were there, and this is due to our present system. We are now talking about it and I also spoke to Minister Chris Said – and we shall proceed on a system of diary that seems to be accepted by judicants as a salient element in the improvement of conditions. But a PA system is today also important, as Judge Padovani mentioned recently in her inaugural speech. I repeat that the present system of ‘called three times, however did not appear’

also in the discussion. Mention was also made of the law course. When not so long ago I was a law student, there were obligatory credits. Today, during the first three years of the course, you have general points, and I believe that every lawyer should be familiar with certain concepts – legal and general; however in the 2nd three years, you may choose the credits you wish. In today’s world one must have a specialisation. Thus I feel that in the 2nd part of the law course, you may choose credits you like as per your future work.’

[402] Votes of the Justice and Interior Ministry – Sitting 56 – Malta Parliament – 18 November 2008 – Hon Debono:

‘Mention was made of the various parts participating in the judicial process. This process cannot be positive and reaching its aims unless all parties respect each other. Thus the lawyer must respect the magistrate, but on the other hand, as is put down in rule 4 of the code of ethics of judicants, these must fulfil their judicial duties with dignity, courtesy and humanity. Respect is also due to the police. The president of the Chamber of Advocates had in a speech said that the members of the police corps show a certain respect for the legal profession. Thus lawyers must respect the police. Unfortunately you sometimes enter a hall requesting deferments to the magistrate when many lawyers are waiting while being called in other halls. With a little practicality and common sense between parties involved, I feel we can move forward.’

[403] New Judge points to high rate of decided cases by the judiciary. Call for improved security at the law courts’, Times of Malta, 12 th June 2012 – ‘Even simple things, like installing a public address system at the law courts would save time between cases, she said.’

136 no longer makes sense. When the court was just one corridor, it made sense but today when called to hall 7 and you are upstairs, you won’t know. A PA system is needed [404] about which Minister Said and I are talking, and we have also looked at some foreign systems where even the hall deputy can send you an sms, even by computer, telling you to go to hall 3 as there is your case. We must introduce these systems, move forward and not say ‘called three times and did not appear’ if he simply went near the main door or elsewhere; or else during some days you may have a bad day, the practice is not efficient but the repercussions are serious. [405]

[404] in many speeches, Hon Debono insisted on the need for a PA system –

Bill amending the Probation Act No 40 – Sitting 203 – Malta parliament 22 march 2010 – ‘Another practice that each lawyer practising in court encounters, is that you are in a hall and called in another, but until you get there the case is over. Recently in parliament I mentioned this, and a PA system is needed in court where today you no longer have one corridor but different buildings. E.g. the Family Court is in another building and by the time you travel from one hall to another, you miss a sitting and the client calls you angrily while you are in the building. I am not saying that this generally happens but occasionally – which we must still reduce in spite of progress. A PA system is important so a lawyer knows where he is needed. A client has his own case but a lawyer has various ones. All parties must cooperate, the courts, the prosecution, and the defence lawyers.’

[405] Dr Debono explained further this practice of ‘called 3 times but did not appear’ – in a parliamentary speech. No 105 – Malta parliament of 28 April 2009:

‘Something must be done about another thing I wish to speak about I notice is that the court has grown considerably more and a senior lawyer tells you that it used to be just a corridor with all halls. At the time, someone came out to the hall door, call a name 3 times which was heard all over. The 3 call system makes no sense.

E.g. when working in Family Court, thus a separate building from the main one some distance away, a call is not heard by anyone. The archaic system has to be improved right away for the sake of the public, inspectors and lawyers.

If e.g. you are an inspector with one case, ok, as you sit in a hall and wait, but if you are an inspector with a few cases, you run from hall to hall for your work. With due respect, this system no longer makes any sense and a PA system is required as a solution to hearing calls for one’s presence. One cannot possibly continue using this method as one cannot hear calls and go from hall to hall easily at a very short notice. It is uncomfortable for all court users especially lawyers and inspectors with various cases. At the same time, a magistrate may proceed in your absence.

With a bit of common sense these matters can improve considerably to everyone’s benefit. After all, people are in court to promote the sense and right of justice. Whether you are a lawyer, inspector or magistrate, there is one aim: to see that justice reigns within an adequate hearing. A lawyer is trusted by a client and justice means also doing one’s best for the satisfaction of the client who has faith in you, resulting in justice being effected.

137

In this motion, I am speaking about major reforms. I will not deal with a positive mater e.g. of cleaners in court, which was an easy thing to do as, for court workers and all people coming to court, a sense of cleanliness is import. [406] Recently about six cleaners were brought and they even clean at the Registry. These are basic things which I do not need to mention here where I need to speak about major reforms. E.g. it’s important to consider an improvement regarding calling persons from halls, organisation of cases, time factor and witnesses. I also mentioned the system of postponements in the Criminal Court – which needs total change. Lots of time is lost before the AG and not before the Court.

16. One must consider that warrants need introduction to some requests [concerning criminality and not national security] by the Security Service, not remaining in the political authority of the Minister which should pass onto the authority of investigative or judiciary structures.

I come now to point 16:

‘Consideration that warrants need introduction to some requests [concerning criminality and not national security] by the Security Service, not remaining in the political authority of the Minister which should pass onto the authority of investigative or judiciary structures.’ [407]

It’s a good thing that we have in our country a security system called ‘secret service’. But in this case, though the state has the duty to protect itself not only from criminality, but also on issues of national security, you have an issue of privacy and other matters. Tody’s situation is that when you have tapping, interception or bugging, you need the Minister’s warrant.

[406] Claudia Calleja: Debono -broken chair just proves my point,’ The Times 30th May 2012. Dr Debono’s incident where a hall chair was broken and collapsed under him is proof of the idyllic state of our Court – ‘Just hours before speaking in Parliament about shortcomings in the Justice system, nationalist MP Franco Debono sustained a slight knee injury when a chair he was leaning on in court collapsed. The nationalist backbencher, a criminal lawyer, has often complained about problems in the Justice and Home Affairs system, among other things. Dr Debono has also hit out at Home Affairs Minister Carm Minfsud Bonnici who, until the first week of January was also responsible for Justice. Defending a client charged with fraud, before magi Anthony Vella, yesterday morning, was standing making submissions when he rested one foot on a wooden chair. The green seat which turned out to be broken, collapsed and Dr Debono fell on one knee, injuring himself slightly. As he stood up saying he was in pain, he was quick to point out that this reflected the bad state of the law courts, where the chairs had not been maintained in decades. People in the courtroom commented that he should not have leaned against it. He pointed out that, had he sat on it, he would have fallen. ‘perhaps I should sue the Justice Minister,’ he joked, adding he would mention the accident in parliament’s debate on an opposition motion to censure Dr Mifsud Bonnici. In a serious tone, Dr Debono Said: ‘If it weren,t so sad [the situation in court] it would be funny.’

[407] This subject was debated in a House meeting chaired by Hon Chairman Franco Debono and many questions were raised on how the present system worked. House select Committee {Re-codification and Consolidation of Laws] – Malta Parliament – Meeting 19 of 28 June 2011.

138 I think that today this situation is not longer acceptable. There should be no political ministerial involvement to decide on telephone tapping or not. [408] If there is a matter of national security, yes, the minister should intervene, but in criminal cases if a drug or human trafficking case is being investigated, or burglary or serious hold up, the minister must not decide, but only the investigative or judiciary authority. [409]

There was in this country a case known as ‘of the 19’ , which later led to the judges case. One can here compare the Maltese and Italian systems, as these cases have not yet been decided, and whoever was in Italy knows that these cases have been decided – one about four years ago and the penalty was about six years or seven. So the Maltese system may be compared to the Italian one where they also have the ‘rito abbreviato’ – I don’t know if it was one of these cases – to accelerate procedures. I remember during arraignment I was one of the defence lawyers; we had remained in court till about midnight before magistrate Peralta to get warrants. Some courts said that these did not have to be brought . There’s lots of controversy on these warrants. Without these warrants obtained from the minister, communications cannot be intercepted. I suggest thus that these warrants are not given by the minister regarding criminality – and I think the English position is like that – but it should be an investigative or judiciary authority that decides if your phone is tapped or not, not the Minister! It may also lead to a misunderstanding or wrong perceptions. [410]

17. Removal of criminal libel, and a revision of the maximum amount of damages a person condemned has to pay to reflect the damage done, considering also the means of communication, including internet, and the libel cases to be heard at the Superior Court chaired by a Judge.

[408 No confidence motion in government – Sitting 439 – Malta Parliament – 25 Jan 2012 – Hon Debono insisted on this sensitive matter:

‘I also spoke on the authorisation by warrant of telephone interventions. These are not romantic subjects, but I think that the time has arrived that it’s not the Minister, thus a politician, gives the go ahead to tapping of a mobile number of a person but an independent investigative or judiciary authority that has the right to wmit these warrants.’

[409] Franco Debono: ‘A vision for Justice’ Times of Malta 11th Sept 2011. Dr Debono wonders whether it’s time for the removal of a Minister’s intervention in sensitive matters except for national security cases – ‘Should warrants for sensitive interceptions, except in cases of national security, be issued by modernised investigative authorities, removing the current intervention by the Minister?’

[410] Adjournment of Franco Debono – Excerpt from Sitting 474 – Malta parliament 16 May 2012 – Hon Debono repeated - ‘There is a need that warrants for certain interventions, i.e. telephone tapping, are no longer done by the Minister but by an independent investigative or judicial authority. We are here talking of the citizen’s privacy, and I do not feel that the Minister should sign warrants regarding who eves drops on you; that’s how it is abroad after all! Only in matters of national security should this apply , however not in criminal cases.’

139 Point 17 of the motion states: [411] ‘The removal of criminal libel and a revision of the maximum amount of damages a person condemned has to pay to reflect the damage done, considering also the means of communication, including internet, and the libel cases to be heard at the Superior Court chaired by a Judge. [412]

I wish to say that repute and reputation are extension of the physical person. In fact the crime of defamation – I think 252 – in the Criminal Code [413] is under crimes against the person. Thus you have homicide, serious injury, slight injury, then defamation. Why? As the repute of a person, his reputation are considered an extension of the physical person. [414]

Freedom of expression is sacred and must be respected, but let’s not stop there as a person must protect its dignity and reputation. The sum of damages today is ridiculous when compare to other countries! It’s Eur 11, 000 – 5000 Maltese Liri decided 15 or 20 years ago while the cost of living index has doubled or tripled. I.E. if it were just that without considering internet…as info read only in Malta is not the same as read the world over! [415]

[411] Point 17 of the Private Motion of Hon Franco Debono was amply discussed in the House Select committee [Re-Codification and Consolidation of Laws] – Malta Parliament – 11th parliament chaired by Hon Franco Debono. In this committee were discussed media and libel laws: Committee 13, 14, 30, 35 and 36 and there was discussion on consolidation of these laws with a proposition of a Code of Ethics for Journalists.

[412] Franco Debono, ‘Vision for Justice’ Times of Malta 11 Sept 2011 Appendexi A. ‘Libel should be taken out of the remit of criminal law and fall within the competence of the superior courts.’

[413] Criminal Code Chap 9 Malta laws, Sub title X. Article 252 [1] Anyone intending to reduce the reputation of someone, hurts him by words, gestures, writing, drawings etc is penalised, if found guilty, for prison of not more than 3 months or a fine [2]. If the defamation is done in unclear words or scolding or simply indecent words, the guilty person is judged on contravention. [3] if the defamation is done by writing, figures of drawings broadcast or exposed in public, the prison sentence is of a maximum a a year. [4] If the defamation is made relatives, there is also a fine.

[414] House Adjournment – Excerpt from Sitting 461 – Malta parliament - 27 March 2012. Hon Debono discussed the crime of defamation and said the following:

‘In the Criminal Code defamation including with writing, is under crimes against the person, i.e. among also homicide and grevious injury. You have homicide, grevious injury, slight injury, followed by defamation. This is as repute and reputation of a person are an extension of the physical person. This is why I asked about the state of freedom of expression in our country as well as the state of libel and the broadcasting Authority. So I suggested that the questions made to me are put also to others, including Richard Cachia Caruana. My argument was that a mastermind behind stabbings by a pen are more dangerous than those who execute them. I was obviously using a metaphor I close this clarification bracket to say that I attacked no one. As others, I have the right to defend myself.’

[415] Motion 439 – Malta Parliament – 25 Jan 2012 – Hon Franco Debono spoke in favour of the increase of the maximum of damages in libel is revised , reflecting the diffusion of news today even by internet.: ‘Mr President, reform is necessary in libel laws. While respecting the freedom of expression we have to consider as important the repute and reputation and dignity of a person – which is an extension of the physical person. Libel cases should be heard by a judge not a magistrate.

140 Thus it is important, not only for politicians, but to everyone, that a person who is defamed, libelled, is awarded damages for two reasons: one a deterrent so people think twice before expressing himself against you without saying ‘OK I can only be fined Eur2000 so I go ahead. After that you perhaps win Eur2000 damages from him and he continues to attack you for years.

With all respect, freedom of expression is sacred. I am only for the removal of criminal libel as in many European countries, but damages must increase considerably as both deterrent and compensation.[416] So if you damaged my reputation, is this worth Eur2000? Even the most private person in Malta does not have a reputation worth only Eur2000! He can’t be that cheap! And this is also from a Christian viewpoint, i.e. a person’s dignity – which is not simply worth Eur 2000 or 3000. [417]

In a newspaper editorial The Sunday times ‘of 6 May 2012 [418], this matter also arose: ‘Coupled with improved libel legislation, that would better serve the public as well as the press…

Obviously legislation must protect the journalist, why not? It means an important evolution regarding journalists.

‘The suggestion made by Dr Debono – that the ceiling for civil damages is raised forn media found to have libelled an individual – should indeed attract support from all responsible media houses as long as the sums reflect local financial realities.’

It’s not acceptable that the reputation of a person is valued at Eur 3000 considering blogs where today a paper is not read by a person in Zurrieq, Qrendi or Imqabba – which are in my district – but internet is worldwide. We must take this fact into consideration regarding damages to that person. A culture must be of rights and meritocracy instead of clientelism and favours. This is diminishing but not fast.

[416] House Select Committee. [Re-Codification and Consolidation of laws] – Malta Parliament – 11th Parliament – Chaired by Hon Franco Debono - Meeting 30 of 30th April 2012, where this issue of Re- codification and Consolidation of laws was debated in this committee: Chairman: ‘Criminal libel must be removed in my opinion but not on its own. I feel that in civil court where you have reputation of an individual has a maximum of Eur 12000 as the medias was a section of law entering 20 years ago – even the cost of living has increased. That’s one. Secondly diffusion of info has radically changed, due to internet which must be considered. I agree that criminal libel must be removed and also judged before a judge, especially of penalty will increase; the sum of damages, due their seriousness, must be raised to a judge’s court.’

[417] Adjournment of Franco Debono – Excerpt from Sitting 474 – Malta parliament 16 May 2012 – Hon Debono repeated the need for removal of criminal libel with a revision of maximum sum for damages reflecting the dignity of the person; In this manner we regulate the developing jungle and the safeguarding of rights and reputation.’

[418] ‘Changing the Media Landscape,’. The Sunday times of Malta, Editorial, Sunday 6 may 2012.

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This declaration makes a lot of sense! A local paper editor says we must amend libel law. [419] and media houses of responsibility should have no difficulty agreeing, as most of them have very limited libel cases. Editors find no problem in stricter libel law. All must be considered within local reality. After all this concerns not only journalists but politicians and anybody else who may be defamed.

Let me now clarify something. My family and I have been personally attacked. I do not want to play the victim as I do not relish playing this role; however there were media comments – I mentioned this in The Times of 16 Jan 2012 at 10.01 am, [420] that I was not expecting these condemnations, but only that libel laws should reflect the adequate realities of today. [421] I did not want to shut anyone’s mouth. I said that I wasn’t even interested in these condemnations. I just said that this country requires adequate libel laws as in othe countries. [422]

[419] ‘Changing the Media Landscape’ The Sunday times of Malta, Editorial. Sunday 6th may 2012. ‘Libel in Malta is in a terrible state for several reasons.’ It is most welcome that the committee which contains Franco Debono, Jose Herrera and Francis Zammit Dimech all seem to be in agreement that criminal libel should be removed from statute books. The notion of criminal libel is both draconian and archaic as well as being a bar to freedom of expression that is in the public interest.’

[420] Debono views PM’s appeal as belated and hollow. He is not defending me but himself. The Times Monday 6 Jan 2012, 1001 am. Dr Franco Debono in a reaction to an appeal for attacks to stop against Dr Debono., saying, ‘ A PM, rather than making a belated and hollow statement, should ensure that adequate laws are in place ensuring freedom of expression, but also the dignity and reputation of the person – which extends the physical person,’ Dr Debono told timesofmalta.com. He added that the PM was not in a position to condemn as the situation was a result of his failure to reform the archaic libel laws and the outdated Broadcasting Act led to a public broadcasting system which left much to be desired and party broadcasting stations. It was better, he said if Malta had better broadcasting and political parties got rid of their stations which may have made sense in the 90s but not today. The PM should not blame the people for his failures.’

[421] No Confidence Motion in Government – Sitting 439 – Malta parliament – 25 Jan 2012 – Hon Franco Debono at various times spoke of press laws which were inadequate in various for a including the media and parliament. In this motion, Dr Debono said: ‘Economic development is important but having strong democratic institutions, fundamental rights that were respected, a representative principle that’s respected, as also a strong separation of state powers between government, the judiciary and parliament. Having laws that respect the individual’s dignity in broadcasting and the press, meritocracy and social justice that are fertile soil producing economic flowering. Without this soil, it’s not easy to have fruit. The history of major European nations, including the French Revolution, is the story of people’s achievements and freedoms. It’s the story of reduction of king’s powers which were transmitted gradually to the sovereign people.’ In the same motion, while referring to his interview with the paper timesonline of 6 Jan 2012 reproduced a part emphasising the inadequacy of press law. ‘If someone is holding the PM hostage, it’s surely not me. I really hope that the PM is not being held hostage by a group close to him, by individuals thinking they can bully others, or people offering protection by operation some network of terror, nurtured by inadequate press laws. If this ever proves to be the case, it would be the real problem, and not an MP doing his duty as per the Constitution. I really hope this is not the case.’

[422] Motion of no confidence in government – Sitting [439] – Malta Parliament – 25 Jan 2012 – Hon Dr Debono insisted on the need to reform the media laws, among which

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In England, if you file for libel you win Stg 200! It’s not for the money but to increase the deterrent and compensation. I said I wanted to have adequate libel laws that represent realities, not to condemn persons. The only condemnation I requested was – to clarify – when there was an attack on a member of my family. It was the only case, and I did not even ask for the author to be condemned but the attack itself. I repeat that freedom of expression is sacred, but obviously he who breaks it and breaks the law, or goes beyond all limits, then sanctions must start [423] I mention my declaration of January to clarify matters as there were media comments. When I say that a libel case must have compensation of damages, it doesn’t mean that I am choking anyone or censuring. I say that one must say what he likes but with responsibility or else be sanctioned. [424]

libel laws. ‘Mr President, the Broadcasting Authority needs reform leading to public broadcasting being improved, in such a way that political parties may get rid of their stations, which may have been necessary 15years ago but not today. It makes no sense to invite a Minister to state broadcasting, put nice questions to him to make him look good, and on another occasion you have someone else whom you try to destroy. You may make a gaffe and not manage to break him, but the aim is all and a subtle aim is more dangerous. On state broadcasting this is not acceptable. Mr President libel laws need reform. We must respect freedom of expression, we cannot give little value to a person’s dignity and reputation which is considered as an extension of physical being. Libels must be heard by a judge not a magistrate. A person’s reputation is not only worth Eur3000 where today a paper is not read in Zurrieq, Qrendi and Mqabba, my districts, but internet has mondial viewing. We must consider this in view of damages to a person. A culture must address rights and meritocracy rather than clientelism and favours. This is improving, though slowly.

Adjournment of Franco Debono – Excerpt from Sitting 190 – Malta parliament 8 Feb 2010 – Hon Debono spoke of sanctions related to the right of reply given to you by law but which may not be effected. ‘Mr president, I invite again the editor of The Sunday Times, so when and where he wants, we discuss. I shall inform this House of a case of censure, a story of oppression which is unbelievable in Malta 2010! After my absence from Parliament, after an interview which was manhandled as they wished, I sent various rights of reply as per article 21 of the Press Act, but they were not published. But yesterday I read an editorial which I found shocking on this paper. I was surprised that even my colleague jean Pierre Farrugia, who has been for long in this parliament, found this editorial shocking and had my same reaction to it. While I sent the editor a right of reply which he did not publish, this is what he said in his editorial: ‘The idea of Cabinet Government has been compromised by fear of certain backbenchers who are managing to condition this administration’s every step.’ No one will shut my mouth, Mr President, as I did not come here freely. People sent me here, Mr President. I shall do my work and nobody will shut me up. Must someone try and shut my mouth for speaking on the right to a lawyer or on fundamental rights or the dignity of parliament?! Is Parliament’s dignity ill-motivated? For saying that institutions must be strong, must someone try to shut me up? This is censure, Mr President. Everyone today speaks of censure and against oppression. This is censure and oppression!’

[424] In the Adjournment of the House under Permanent Order 13 – Malta Parliament – Discussion on acquisition, by purchase of lease, of St Philip’s Hospital by government – Sitting 508 – 15 the October 2012 – Hon Franco Debono had repeated that criminal libel must be removed, but at the same time, libel law must improve to safeguard the person’s reputation. Hon Franco Debono: Mr President, today some people celebrate Black Monday. For me this was also Black Monday – and has been so for long – after seeing the poll by The times showing that the government is losing 12% of the Opposition, and asked readers’ opinion about me. Forget that my rating is better than the PM’s who got 30% and I 36%, but after dirty campaigns and subtle personal attacks can you go and ask opinions regarding a person you have been attacking

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Let me make this argument and close here. Imagine that regarding the crime of theft, whatever quantity you steal, your maximum fine is Eur 1,000! So you steal as much as you want as the penalty is Eur 1,000. I am bringing this example as you understand the bad state of libels today. If your compensation is not adequate, it’s useless finding someone guilty of libel as the maximum penalty is Eur 2,000 and he attacks you again the next day, with no justice having been done – while it’s good that justice is done!

18. The revision of entry requirements which are presently loose for entry to the law course, so the standard and prestige of the legal profession are retained.

Point 18 states:

The revision of entry requirements [425] which are presently loose for entry to the law course, so the standard and prestige of the legal profession are retained. [426]

This has already been done, also thanks to Prof Kevin Aquilina. The entry requirement have now been raised [427] so as to keep the prestige of the legal

A person as dirty, then…..all violence must be condemned as it is all wrong. Freedom of expression is sacred, and indeed one of my points is the removal of criminal libel. I am saying all this as it is relevant to what we’ve been saying today, as one may acquire power, keep it and implement policies to trample on everyone; so we need the media a lot! It’s not a mystery that this is the fourth column. What we are discussing today is one of the worst reefs encountered by this government in four and a half years.

This story was in the media as, as per Dr Pullicino Orlando, the media has a fundamental role and, as I said, freedom of expression is sacred though its abuse is very bad and I have in this parliament said that we don’t have adequate libel laws to protect a person’s reputation. But I was the one to give it parliamentary importance as on 10th October, 2012 I presented a motion on it, on this story considered stinky by many.

[425] Franco Debono – Vision for Justice, Times of Malta, 11th Sept 2011. In this article Dr Debono says that the requirements for a law course, as it presently is, must rise.’ Entry requirement for the law course must be stricter.’

[426] House Select Committee. [Re-Codification and Consolidation of laws] – Malta Parliament – 11th Parliament – Chaired by Hon Franco Debono - Meeting 21 of 12th December 2011, where this issue of the law course was debated in this committee: Chairman: the prestige of the legal Profession must be safeguarded. I already said this during my Private members’ Motions as the prestige of the legal profession cannot accept a low standard entry to the law course.

Chairman: Apart from this I mentioned – and you Prof Aquilina are also Dean of the Faculty of Law, make me mention a point you have referred to….I have for a long time discussed the entry requirements to the law course – which must increase. These were too low and inadequate for the prestige of the legal profession and other considerations.

I was informed after presenting this motion that these requirements were being discussed. I had also made PQs which I then included in my motion; however from the PQs I did in the middle of last year, the Minister replied that there were

144 profession [428] and the course structure was reviewed. When I followed the course myself, about 12 years ago, there were subjects that were not interesting. When you are 22, 23 years of age, you think about starting to work, not to study subjects you find uninteresting. The course needs a general part, and another related to the specialisation of your wish – at 22 you hardly wish to study subjects you don’t find interesting. Of course a lawyer needs to study a general part, but it’s useless studying things you will never use. Indeed there are subjects I never used in my profession as I worked exclusively in criminal law. Today it’s a world of specialisation and university courses, in a general way must take this in consideration. [429]

I must mention a particular case and I was criticised being told to go and speak to my party that a particular client of mine was going to be arraigned in court. But there is the professional secrecy. At the same time, you are sometimes criticised for speaking to journalists, telling them to mention your name. Also, if it’s a public case, what’s wrong if I was the lawyer? And all lawyers do it. Journalists also ask you if you were the lawyer in a certain case – it’s very normal! But if a case is behing closed doors, or tied with professionl secrecy, one can divulge nothing. I was criticised for not telling the party I was to defend this case. So do I

no intentions to review; lately there was this intention which may have already been adopted. Prof Kevin Aquilina. In fact, we have been discussing for 2 years with the Chamber of Advocates while the reply to PQ says that there is no approval from the Senate. In fact the approval came during the last Senate, i.e. about 2 weeks ago, but the discussion has been ongoing for 2 years.

Chairman. But in any case it serves for speedier work, though not yours, Prof., as you have just been promoted, while I did have the opportunity to speak about procrastination to take 2 years to decide on entry requirements in the Faculty of Law – it’s not normal. In the committee, some were sceptical regarding raising entry requirements, as Hon Zammit Dimech, Committee member who said that he disagreed with raising entry requirements to study. But Hon Debono replied:

Chairman: OK, your opinion, but no one is trying to do what I consider a prestige to the profession. As, in the same way, you allow everyone, and do it with your reasoning…but you have to draw a line somewhere. This must be reasonable as it would make no sense, and I also wish to add something on this point…many may be admitted with low qualifications and 50 fail. Is that right, Prof.? In the 1st year, there is a failure of 40 or 50; so the entry requirements must be raised.

[428]Franco Debono; ‘Essential Legal Administrative Reforms’ Times of Malta, 12 October 2011. ‘Members of the judiciary are ultimately chosen from the legal profession, so an upward revision of the entry requirements to the law course is also relevant.’

[429] Votes of the Minister of Justice and the Interior – Sitting 56 – Malta parliament – 18 Nov 2008 – Hon Debono said: ‘There was mention of the act to regulate lawyers, which I consider as positive, to be promoted and discussed. But I also refer to the law course. When I was a student not long ago, therewere obligatory credits; you have today a general part and I believe that all lawyers must have generl knowledge,. However after 3 years, there must be specialisation according to the future work of the lawyer. In today’s world, specialisation is necessary, in relation to your future chosen work.’

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Have to tell the party something which I cannot, due to professional secrecy? I refer to the Cyrus Engerer case in which even a charge sheet was leaked and the magistrate ordere for the case to be heard behind closed doors. Should I tell the party? What’s this nonsense? Where you have a sentence or a presented case, procedures are public. All sentences today are on internet. The lawyer must be protected against insinuations which make no sense at all.

Regarding entry requirements at University, I had made a PQ. [430]] in summer and the reply said there was no intention of changing them. After my motion, things changed and both course structure and entry requirements changed.

19. which is to review radically the justice system in the sector of minors:

Let me now pass on to point 19:

‘radical revision of the justice system in the minors’ section’ I have little time to discuss this, but I invite the Social Affairs Committee [431] to analyse in detail the situation regarding minors. [432]

[430] PQ 27453 Malta parliament – Hon Franco Debono, regarding the law course. Hon Debono had made the following PQs to the Minister of Educ., Employment and Family: Minister, can you tell me how many law graduates were there from 2005, year by year? Will entry requirements be modified in the law course at Malta University faculty of law? Hon Dolores Christina: My answer lists graduands in law from 2005 to 2010 year by year. There is at present no intention to modify [actually upgrade] entry requirements in the law course. Sitting 381 – 11/7/2011.

[431] Permanent Committee on Social Affairs – House Committee – 11th parliament – Chairman Hon Edwin Vassallo.

[432] Jurgen Balzan, ‘Situation at young offenders rehabilitation unit ‘unacceptable’. – Coleiro Preca – Inmates at YOU Services is unacceptable says Minister of the Family and Social solidarity M Louise Coleir, Malta Today 12th Apr 2013. ‘Underage inmates at Corradino CF are not offered a rehabilitation program and Family Minister marie Louise Coleiro said the government is committed to addressing ‘unacceptable’ situation.

Coleiro Preca said the government, speaking after a visit to YOURS, briefly met 30 inmates. Over 2 years ago, ex-Home Affairs Minister Carm Mifsud Bonnici promised to house inmates at YOURS to a location outside prison compound, but this did not happen. The promise was of 3 months! An EU Justice Commission showed Malta had highest no. of young offenders, with 6.1% of the 600-odd inmates at CCF falling under EU’s definition of juveniles.’

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These are social cases with a difficult upbringing who ended up in criminality at a tender age, not the ones on internet.

I have seen in my profession, minors who were in minors’ court at 13 years, who had continued that way as, in spite of the judicant’s good will – it was Mag Silvio Meli at the time –who had inadequate resources. [433] I remember Joanne Battistino, as a social probation officer, working a lot at YOURS [434] a very valid person. It was promised that YOURS would no longer be part of prison – and this needs to be done. [435] Yesterday I mentioned placements and inmate classification. I wish to discuss the minors’ matter, but time does not allow me. I Id invite the Social Affairs Committee to delve deeper. I only have one line in my motion, though this is a whole topic requiring improvement, modernisation, adjournment. [436]

Votes of the Ministry of Justice and the Interior – Sitting 162 – Malta Parliament 19 Nov2009. Hon Debono spoke of resources needed to deal with minor criminality; regarding Minors’ Court, Hon Edwin Vassallo said: ‘children that are difficult now may end up as inmates soon. If the state’s resources helped them at age 13, they would have avoided prison at age 16. It’s a big problem. Over 10 years I have seen at minors’ court, children of 14. It’s also a court needing many resources where problems start. A person before this court, if supervised,will not be a criminal at 16. Resources are needed at this tribunal.’

[434]YOURS is a CCF facility moved on 7 Nov from Corradino to Mtahleb.

[435] YOURS moved to Mtahleb,’ The Malta Independent 8 Nov 2013. YOURS was yesterday moved to Mtahleb, where the drugs rehab SATU is situated, announced the Home Affairs Minister. It has 17 inmates and has been in use since 1998. Dr Mallia said that in over one and a half years under the previous administration, Mtahleb was not in use but had the facilities.’

[436] House Select Committee. [Re-Codification and Consolidation of laws] – Malta Parliament – 11th Parliament – Chaired by Honor Dr Franco Debono - Meeting 19 of 28th June 2011, including on the agenda the strengthening of the existing right to legal aid and the minors’ section; the Police Commissioner of the time had said:

Mr John Rizzo: ‘Regarding many proposals, we are there already. At the Police Corps, we had introduced a code of ethics, how to deal with arrested persons, especially minors. Sometimes people forget they are talking about minors. A Code of ethics in a pocket book has been in force since 2003. Chairman: It did not consider the lawyer’s presence. Mr John Rizzo: Don’t forget that the Salduz sentence regarded a minor. Relevant persons had not been informed. But after all, we introduced this in 2003.’

In meeting 32 of 23 May 2012, the discussion dealt with the Consolidation of Criminal Laws, also with reference to minors; the commissioner said:

Mr John Rizzo: You must have all observed matters related to procedure. For example the age of minors was considered 16 and under. It is today 18 years, with no law in existence; we introduced it and we were proactive. It means that an individual under 18 years

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20. The strengthening of the library of the Courts of Justice:

Point 20 states:

‘the library of the Courts of Justice must be improved.’

Something that shouldn’t be difficult. I took this point from the speech of the Chief Justice during forensic year. [437]. The court library has not fairy tales but it’s important due to its research material. Lawyers do their work well and the research facilities at this library offer valid material. With access to sentences and so many other documents.

I am informed by Minister Said that Wi-fi is being installed all over the courts and also electronic filing of Acts to be accessible on internet. [438] I repeat that I am mentioning the Clurt library as it was mentioned by the Chief justice. [439] It only needs more funds to improve. There are other matters of administrative nature requiring improvement but I have no time to discuss this now. [440]

22. Parliamentary Committees must be consolidated for Codification and Consolidation ofLaws and of the Law Commission, so as to adjourn, recodify and consolidate our country’s laws.

Point 21 says:

We are asking him if he wants to be assisted by the parents, a tutor. Obviously, this may require an amendment in the law, now that minors are no longer under 16 but under 18.

[437] ‘More investment is needed for our courts; Chief justice says,’ maltastar.com 3rd October 2011 – Chief justice Silvio Camilleri has called government to invest more money in the administration to invest in the speeding of cases. ‘In a strong inauguration speech at the start of the new forensic year, the Chief justice said that only Eur500 were spent on the court library – far too little to update the library and for the judiciary to subscribe to online resources, so necessary at the time of huge legal changes.’

[438] ‘Court evidence being digitally recorded,’ times of malta 6th July 2012, ‘Dr Said said that evidence was now being taken digitally, a change that had been embarked upon following the intervention of Dr Debono. Other recent developments included equipping a fourth hall with video conference facilities. Dr Said said tht a pilot project was under way for civil cases to be filed electronically. Wi-fi had also been installed at both the Malta and the Gozo courts.’

[439] Considerable and continuous investment necessary in the Judiciary – Chief justice.’ The Malta independent, 4th oct 2011. ‘He pointed out that the budget for courts library IS ONLY Eur500 per year. While a judge or magistrate would need to consult the most recent material when writing judgements, such a low budget means the courts cannot subscribe for much necessary online research services. Staff engagement is another matter that merits attention, he said.

[440] This need for more resources to improve the library at court had been felt since 2004 when the Chief justice was Hon Vincent de Gaetano. ‘Chief justice says courts lack EU-related resources,’ Times of malta 12th march 2004. ‘The court library still lacked the minimum requirements in terms of EU legislation and books on EU law, said Hon De Gaetano.’

148 ‘the consolidation of the parliamentary committee for Codification and Consolidation of laws and the Law Commission to continue the adjournment, recodification and consolidation of our country’s laws.’[441]

I am now talking about the committee [442] I practically gave birth to [443], is now set up with me as chairman. Hon Jose Herrera also mentioned it often – regarding the need for this process in Parliament – even before I was elected. Indeed I put a lot of effort and Herrera is member.[444]. We can say that we both do important and essential work. Mr President, we suggest that the Law Commission and also the Minister [445] are working on it as I was consulted many times and there is progress – and as we learned from hearings before the Committee [446] it was not doing

[441] House Select Committee. [Re-Codification and Consolidation of laws] – Malta Parliament – 11th Parliament – Chaired by Hon Franco Debono – Meeting 17 of 14 March 2011 dealt with the approval of the 1st working report of the Select committee and it was held that: ‘Another good point that is incorporated in the report is the issue of the Law Commission. This committee could work in synergy with the Law Commission and progress is being made for a pragmatic cooperation. One must also discuss the recommendation of weaving the two structures together during this 1st year of work.

[442] House Select Committee. [Re-Codification and Consolidation of laws] – Malta Parliament – 11th Parliament – Chaired by Hon Franco Debono – with members Hon Jose Herrera and Hon Francis Zammit Dimech.

[443]House Select Committee. [Re-Codification and Consolidation of laws] – Malta Parliament – 11th Parliament – Chaired by Hon Franco Debono – Meeting 26 of 12 march 2012. Hon Debono explained ‘When I had the idea, I felt a certain void in the activity of consolidation and codification.’ Meeting 31 of 7 may 2012, Hon Debono explained that he pushed a lot for the setting up of this committee and as Prof Aquilina explained, the Law Commission was meant to do codification work; a lot was done especially with my efforts to set up the committee. In only 2 years, this committee met 30 times and I thank you for your contribution.’

[444] Jose Herrera: ‘The making of an independent judiciary’, Times of malta 5 jan 2013: ‘it must be pointed out that over the past 3 years, the Recodification and Consolidation of Law Committee chaired by Franco Debono and of which I was member, has been tackling this sensitive issue. The committee took the initiative to draft an Administrative Code of 1017 articles and 22 schedules with a draft Bill aiming at amending the Constitution of Malta in line with the proposals made in the Administrative Code.’

[445] ] House Select Committee. [Re-Codification and Consolidation of laws] – Malta Parliament – 11th Parliament –- Meeting 26 of 12 March 2012. Among the guests, Hon Chris Said said: ‘that regarding the amalgam of the Law commission I will consider what’s best as moving forward requires tools.’

[446] House Select Committee. [Re-Codification and Consolidation of laws] – Malta Parliament – 11th Parliament – Chaired by Hon Franco Debono – Meeting 12 of 25 Jan 2012. Hon Debono explained ‘We were informed that these last years, the Law Commission was not meeting. It means that among the 3 entities, the Law commission was not functioning: the Justice Unit, this Committee and the Law Review commission requires the presence of Judge Emeritus Prof G Mifsud Bonnici who is the Law Commission Officer. In meeting 21 of 12 Dec 2011, Dr Debono said: Another proposal I made is the amalgam of this committee with the Law Commission with practically the same function and it seems as if the work was very slow and one must explore the possibility that this committee is amalgamated with the Law Commission.’ In meeting 22 of 7 February 2012, Dr Debono

149 enough work in the sense of requiring amalgamation [447 in some way with this Committee [448] to avoid duplication of duties and of procedures; thus amalgamation leads to better work. [449] the committee’s work is meticulous and time-consuming, while it has insufficient resources for the work. [450] Le comité a présenté un code [451] of an administrative bill, [452] is

underlined: ‘As resulting to this committee, the commission’s work leaves to be desired. So this organ, as Hon Zammit Dimech said must be amalgamated or put under the wings of an existing one, as is best.’

[447] General estimates 2012 Hon Debono said: I suggested that the House Select Committee [Recodification and Consolidation of Laws] which I chair, is consolidated with the Reform Commission Lately it’s been dormant and I thus favour amalgamation.

[448] House Select Committee [Recodification and Consolidation of Laws] – MGeneral Estimatesalta 11th Parliament –Meeting 6 of 2nd March 2011 – discussed that this commission ends with its work taken up by this Committee. Chairman Hon Debono said: ‘This absorbtion makes sense; don’t forget, prof Aquilina,that lots of work exists at the law Commission.’ Prof Aquilina said: ‘That’s why the Committee was set up; to fill up the administrative void in codification and consolidation of laws.’ Dr Debono: Hon Herrera, I feel that prof Aquilina is saying that the volume of work at the Law Commission was not…and due to this void, the Committee was set up. I wish to hear how, on the basis of the Administrative Code – suggestions on the amalgamation of both structures, working together or one being a subsidiary of the other.’

[449] Franco Debono: ‘Visions for Justice,’ The Times of Malta 11 Sept 2011. Appendix A. ‘The Law Commission and the committee for the Codification and Consolidation of laws need amalgamation.’

[450] House Select Committee [Recodification and Consolidation of Laws - 11th Malta parliament – meeting 22 of 7 Feb. 2012, Hon Chairman Dr Debono said: ‘Obviously one of the aims of merging of this committee and the Law Commission, as you said Hon Zammit Dimech, is the separation of powers, apart from the fact that this committee’s work is deep and goes into detail. As the Committee is today, it has no resources and time to do this detailed process. With the suggested process, the committee may do better work. The Law Commission, which is not using its resources to the maximum, would be better used; thus amalgamation would promote recodification and reconsolidation, where technically each section of the Laws Of Malta with better human resources, could be done.’

[451] Bertrand Borg: ‘Plan to shrink 500 laws into 40’, Times of malta, 30 may 2012, ‘A draft administrative code proposes to condense 30 maltese laws into a single legal code; this is the first time such measure is done in Malta. Drafted by the House Committee with the assistance of law professor Dr Kevin Aquilina, the code bringstogether existing laws while reforming others. The work of this committee aims to simplify Malta’s 514 existing laws to a manageable 40. Presenting the code, Committee Chairman Franco Debono said ‘the draft code aimed to harmonise legislation and remove contradictions, plug tentative legislative gaps and propose reform where needed.’

[452] House Select Committee [Recodification and Consolidation of laws] – Malta 11th parliament – in the following meetings, were discussed the advantages and disadvantages of a Directorate of Administrative law: Meeting 3 of 7 April; meeting 4 of 13 April; Meeting 5 of 21 April; meeting 6 of 28 April; [2010]; meeting 7 of 2 June; meeting 8 of 9 June; meeting 9 of 16 June; meeting 10 of 23 June [2010]. In te following meetings the Administrative Code was discussed: meeting 16 of 2 march; meeting 21 of 21 December; [2011]; meeting 22 of 7 February 2012; meeting 25 of 27 Feb; meeting 26 of 12 march [2012]; meeting

150. Work on consolidation of laws of the press. [453], laws on party financing, [454], electoral laws,[455], Commercial Code [456], Police laws [457], Criminal Code [458] which is doing a lot of work but can do more with more resources.

After presenting this motion, in fact the minister must consider the consolidation of the House Select Committee[Consolidtion and Recodification of law] with the law Commission. I think it’s a step for better work. [459] The Committee was well supported for its work – I think Hon Herrera will speak about it; it’s an essential process.

23.The detailed examination of a developing situation, including the Small Claims Tribunal, various tribunals, mediations and arbitrations where in a small country many litigations are judges by non-judicant persons as per the Constitution, but part-time judicants and particularly the consequences of a constitutional sentence regarding forced arbitration;

Point 22 says: ‘The detailed examination of a developing situation, including the Small Claims Tribunal, various tribunals, mediations and arbitrations where in a small country many litigations are judges by non-judicant persons as per the Constitution, but part-time judicants and particularly the consequences of a constitutional sentence regarding forced arbitration.’

28 of 26 March; Meeting 29 of 23 April and meeting 31 of 7 may [2012] where there was a presentation of the 1st bill of the Administrative Code.

[453] House Select Committee [Recodification and Consolidation of laws] – Malta 11th parliament – in the following meetings, were discussed the Consolidation of Press law Meetin 13 of 1 Feb; meeting 14 of 8 Feb; meeting 30 of30 Apr.; meeting 35 of 30 May; and meeting 36 of 6 June [2012]

[454] House Select Committee [Recodification and Consolidation of laws] – Malta 11th parliament – in the following meetings, were discussed the Party Financing. Meeting 37 of 18 June 2012 and meeting 38 of 2 July [2012]

[455] House Select Committee [Recodification and Consolidation of laws] – Malta 11th parliament – in the following meetings, were discussed the Consolidation of Electoral Laws. Meeting 15 of 14 Feb.;[2011]; meeting 37 of 18 June; and meeting 18 of 2 July[2012]

[456] House Select Committee [Recodification and Consolidation of laws] – Malta 11th parliament – in the following meetings, were discussed the Commercial laws; Meeting 31 of 7 May; and meeting 34 of 29 May [2012]

[457] House Select Committee [Recodification and Consolidation of laws] – Malta 11th parliament – in the following meetings, were discussed the Police Code.

[458] House Select Committee [Recodification and Consolidation of laws] – Malta 11th parliament – in the following meetings, were discussed the Criminal Laws. Meeting 20 of 11 July; [2011; meeting 32 0f 23 May; and meeting 33 of 28 May [2012]

[459] House Select Committee [Recodification and Consolidation of laws] – Malta 11th parliament – in the following meetings 34 of 29 May [2012], Hon Debono said: I wish to specify, this committee also offered complementing the work of the law commission. It is thought that this commission may be the executive arm of this Committee. It’s wise to consider why the law commission must be more active.’ 151

I have no doubt that Hon Herrera will speak about it. I had the chance to say in parliament [460] that we unfortunately dismantled this system of ordinary courts to create a parallel system of tribunals, arbitrations and mediations. [461] It’s positive and let’s encourage them, even judge Robert Mangion, when given this role, said that the judicant must also be a mediator. But you end up appearing before your colleagues and in this country all know everyone, so one must have constitutional safeguards of judicants. You must evaluate judicants; and you can end up appearing before a judicant with whom you had a case in the morning. I’m not saying that they are not serious and of integrity while the system somehow worked; however it’s desirable that you have a judicant deciding those cases and not a part- time lawyer practising in the morning and you appear before them in the afternoon! [462]

Concerning the Small Claims Tribunal, you have clients with a case against their neighbours, and for them Eur100 is not a small claim but it’s part of their life and pique comes in. Some of these claims have more than a monetary value. I’m not saying that the system did not work but I have my doubts on these arbitrations and mediations. Let’s continue with these claims but ideally, as in other countries, a judicant must be involved. [463]

In the House Adjournment – Excerpt of Sitting 474 – Malta parliament 16 may 2012 insisted: ‘For long the system of justice and home affairs was dismantled a system of ordinary justice to set up a parallel system of committees, tribunals, mediations and arbitrations. These need to exist, though a constitutional sentence stated that force arbitration cannot take place and I don’t know the remedy that was effected. The country needs these important reforms quickly, and we must concentrate on them. The PM has known my opinion on this for long.

[461] Votes of the Justice and Interior Ministry – Sitting 56 –Malta Parliament 18 Nov. 2008. Hon. Franco Debono said about mediation: ‘Hon Herrera mentioned different forms of dispute resolution, and if I understood him correctly, he said that there were other forms where disputes are solved between individuals, i.e. apart from judicial systems as in the courts. I think this is a positive development . We have today an established system of mediation and one may seek a solution to disagreement without going to the courts.’

[462] No confidence motion in government – Sitting 439 – Malta Parliament 25 Jan.2012 – Hon Franco Debono is sceptical on whether these tribunals and arbitrations are chaired by lawyers as part-time judicants. ‘Mr President, we dismantled the system of ordinary justice in our courts to build a system of parallel tribunals, mediations and arbitrations chaired by practising lawyers who act as part-time judicants in the morning or evening. This is of enormous danger in a small country like ours where the main problem and the chief preoccupation is that everyone knows everyone else.’ Dr Debono continued in the same motion: ‘Let me go back to the system of part-time judicants. I don’t know how they are nominated – I did not ask to be nominated as God forbid I needed to – but isn’t it funny that in a small country like ours, we dismantle a system of ordinary courts to create a parallel system of small claims tribunals where you have in the morning a case against the person who in the afternoon will judge your cases? We are not a population of 70 million. It’s unacceptable. These systems may exist but without dismantling one system to create another.’ [463] General estimates 2012 – Votes of the Justice and Interior Ministry – Sitting 421 – Malta parliament – 2 December 2011 – Hon Debono said: ‘Mr president, I have worked very little at civil court as I have done so mostly in the Criminal and Constitutional Courts; once I had a case in small claims where the sum was a miserable one of Eur 100. It was a case between neighbours and their dispute was much bigger than a simple one of monetary value.

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This is because in a small country like Malta, everyone knows everybody else; he know the other person’s brother or aunt; or he met the other one when he went swimming or he is an amateur boatman etc etc. In this small country we must recognise reality of acquaintances between everyone. [464] In fact we have a saying that goes: ‘It’s not how much you know but who you know’ and we must keep this in our minds. It doesn’t mean that it’s true but it’s a Maltese saying. That’s why I like to mention meritocaracy but cannot go into other points.

As regards forced arbitration [465] we are doing an extra step; we are not putting arbitration at the disposal of the citizen to utilise, but we are forcing hi. [466] We are excluding the jurisdiction of ordinary courts and forcing arbitration on people. Indeed the Constitutional court said that we cannot do this.. [467]

Thus I don’t like using a system with many tribunals or having a system mentioned by Hon Herrera who spoke of municipal drugs court We are a small country without 200 courts, but we have one court which we must strengthen. That’s my vision at least.

[464] General Estimates 2012 – Votes of the Justice and Interior Ministry – Sitting 421- Malta Parliament – 2 Dec. 2011 – Hon Debono continued: ‘One of today’s major problems, both in the small claims tribunal, and in Arbitrations as well as in the Family Court, is that we end up appearing before lawyers more one used to appear before a judge and now a part-time mediator than before judicants. E.G. in the Small Claims Tribunal, a lawyers presides where it used to be Family Court; I don’t like these systems at all. We are a small country with widespread mutual acquaintance. Even in the case of a judicant with security of tenure with constitutional responsibility, there are sometimes rumours – so one can imagine.

[465] Act on Arbitration Art. 15 [11] Chap. 387 of Malta laws and Regulations under legal advice 279 of 2005 deal with mandatory arbitration. [466] In Private Members Motion no. 280 – Motion of Hon, Michael Falzon and Hon Jose Herrera on reforms in Justice and interior sectors [no confidence vote injustice Minister Carm Mifsud Bonnici] sitting 483 – 29 May 2012, Hon Franco Debono spoke on mediation and arbitration while recognising their importance, spoke of the need for their review and disagreed with forced arbitration. He added: Apart from this there is some good in the mediation and arbitration system but needs improvement. There were also constitutional cases on forced arbitration – which basically is meant to reduce statistics. So, while arbitration is good, forced arbitration is bad and the same Constitutional Court condemns it.

[467] H Vassallo and Sons Ltd. V AG, WSC and Enemalta Corp, 30 Sept 2011. Constitutional court App. 31/2008/1]. The Constitutional court declared that forced arbitration breaches the fundamental human rights and adequate hearing and thus anti-constitutional. This court confirms the reasoning of the First hall Ref. 31/2008] and is related to Anthony Grech v Claire Calleja and the AG, 19 Oct 2007, First hall of Civil Court [constitutional Sitting] and Joseph Musct v PM, Justice Minister and AG, 29 May 2009, First hall [Constitutional Sitting][Ref 41/2008].

However lately this mandatory arbitration matter arose again with contradictory conclusions.. In Untours Insurance Agency Ltd. & Emanuel Gauci v Victor Micallef, Saviour Micallef, Anthony Theuma & Kevin Bartolo, 25 Jan 2013, Constitutional Court [App 81/2011/1] where the Constitutional court decided that the institution of mandatory arbitration did not breach adequate hearing as per Art 39[2] of the constitution and Art 6[1] of the European convention of Human Rights.

153. Mr President, there was argumentation followed by the intervention of Profs Gogo Mifsud Bonnici and Vanni Bonello, on laws declared by the Constitutional Court as breaching the Constitution and then what’s to be done in Parliament? The administrative code proposes a solution. [468] it involves an interesting debate.. When a law goes against the constitution, the latter must change. It’s not enough to declare it null and void but it must change with the legislative intervention of this Parliament.

23. One must establish a 3rd grade of revision as a supreme court, or corte di cassazzione in Italy, or any equivalent structure.

My last 2 points, Mr President, are those in my amendment. Firstly the setting up of a supreme court[469] which is an interesting point in our legal system[470] as in Italy,[471], the Supreme court of

[468] First draft Administrative Code launched by the Select Committee [Recodification and Consolidation of Laws] – Malta parliament – 11th Legislature – title III of the Procedure Regulating Unconstitutional and Illegal Laws] 310. [1] Where a court had declared in a definite judgement which has become res judicata that a provision of a law or a whole law is null and void, the court shall order the Registrar to serve a true copy of the judgement on the Law Commissioner. [2] The Law Commission shall, not later than 3 working days from the date of service, enter a notation in the Revised Edition of the Laws of Malta by asterisk and a corresponding asterisk in the footnote to the said provision or title of the law, that the said person or law has been so declared null and void, setting out the relevant details of the court judgement.

Cessation of operation of provision of law declared null and void. 312. Once the Law Commissioner enters the said note in the Revised Editions of the Laws of Malta, the provision or law in question shall cease to be operative from the date of judgement and the said provision or law shall have no legal effect. [2] should the law Commissioner be of the view that this cessation is insufficient, the Law commissioner shal prepare a Bill which gives effect to such judgemnt.

[469] General Estimates 2012 – Votes of the Justice and Interior Ministry – Sitting 421- Malta Parliament – 2 Dec. 2011 – Hon Debono continued: ‘One of today’s major problems, is the need to consider a third tier of review.’ We have today the first instance, appeal and then the constitutional. A third tier of review is necessary as in the cassazione system in Italy.[470] ‘Committee backs call for a Supreme Court.’

Times of Malta 26 April 2012 – ‘A call for the setting up of a Supreme Court, raised by the President’s forum was repeated by the House Committee chaired by Dr Debono. Committee Chairman Dr Debono that this would ensure consistency and uniformity in court sentencing. Labour MP J Herrera said he had proposed cessation meetings with 5 judges, 3 representing the Court of Appeal and 2 from the same court. The Dean of the Faculty of law at the University of Malta, Kevin Aquilina, said members had to be on a permanent basis. Dr Debono appealed for the drafting of an Administrative Code for public consultation. The committee also raised the issue of Court sentences declaring sections of the legal code as no more applicable.

Dr Herrera said he was concerned that a judge was assigned to hear constitutional cases when he was member of the Constitutional court. Court Prof Aquilina proposed the setting up of an Administrative Court to replace the Administrative Review Tribunal. He said that under the Administrative Code, the Chief justice would have to consult the commission for the Administration of justice for administrative posts.

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Cassazione.’ [472] Often it’s on points of law and, to ensure uniformity of judgement, it’s something we often complain about. So it’s sensible to create a 3rd tiers court. [473] – as many other countries. This point arose in the President’s forum [474] during an important discussion.[475] A supreme court is urgent.[476] as the Corte di Cassazione in Italy. – a highest grade of ordinary court jurisdiction.[477]

We must seriously think of setting up this structure. [479]

[471] In the Adjournment of the House –Sitting no. 474 – Malta Parliament – 16 may2012. – Franco Debono - Discussion on setting up of a supreme court, linking it to the same proposal of the President’s Forum in which Dr Debono participated. ‘These are things we should have done. While mentioning these things, I feel we should have a supreme court – discussed in the President’s forum – or a cassation court which now needs consideration.’[472] A Supreme court is the highest Appeal court ensuring the correct application of the Inferior and Appeal court and decides on which court has jurisdiction to hear this type of case.

[473]Franco Debono. ‘Vision of justice,’ Times of Malta, 11 Sept2011,’The juridical set up could consider a 3rd tiers on the Italian cassazione model.

[474] President’s forum: Malta’s constitution still serves the people’s needs?’ Saturday 21 April 2012. This Forum was also organised the following year in April 2013 which discussed the same theme.

[475] Carmelo Abela,’The President’s Forum,’ 23 Apr 2012. The Malta Independent This President took a number of initiatives very appreciated by the Maltese. Last Saturday, the Forum met, to start a discussion on constitutional reform – a well-organised forum giving food for thought, raising points by speakers and President. It’s an important discussion to enhance democracy with checks and balances. Justice must be made but not seen. – just like democracy.’

[476] House Select Committee [Recodification and Consolidation of Laws] – Malta 11th Parliament – in the following meetings 29 of 23 April [2012], Hon Debono said: Last Saturday, the president’s Forum, on constitutional reform, arose the Supreme Court issue. I think Prof Refalo mentioned the Supreme Court issue which ensures uniformity between sentences. I approve this development related to the Corte di Cassazione. We need a 3rd tiers of review with which I perfectly agree.

[477] House Select Committee [Recodification and Consolidation of Laws] – Malta 11th Parliament – in the following meetings 32 of 23 May [2012], Hon Debono spoke of the Committee’s agenda, there was the Consolidation of the Criminal law:

‘I go further; I often proposed – as in the President’s Forum which is relevant to logic made by Dr Sciriha who agrees with a 3rd tiers of review. I think the Chief justice proposed a supreme court based on the Italian cassazione which ensures uniformity. Indeed many appeals only result in long procedures which need shortening. In reality all are to blame for long procedures: the prosecution, defence, the court which gives 2 deferments…’

[478] ‘Committee backs call for a Supreme Court in Malta, issue raised in the President’s forum, repeated yesterday at the House committee of Recodification and Consolidation of laws. During this meeting, the Chairman said that such a tiers would ensure consistency in decision making and uniformity in court sentencing.’

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24.The jury system is good but needs improvement

The last point is on the jury system, [480] an English-inherited system that very good, where you are judged by you own peers, but needs principal fine-tuning. You cannot place jury members in a court hall and expect them to become professors. They should be trained as in other countries, not extensively as they are not lawyers but basic traing. [481] I also mentioned the process of choice of jury members and this has improved with more randomness.

We must discuss if a judge should deliberate with these members as if they become experts shorty! [452] Some juries rest on points

[479] Raphael Vassallo, ‘When the Constitution is not supreme…’ malta Today 3rd May 2012, ‘it may have been overshadowed by former US ambassador Douglas kmiec’s controversial comments about God, but one of the radical proposals discussed the justice system’s needed reforms – including a Supreme court which was 1st mentioned by Prof Ian Refalo – foremost constitutional lawyer who referred to an apparent anomaly undermining the position of Malta’s constitutional Court as ‘supreme law’ of the land. It was this concern that prompted Prof Refalo to suggest vast reforms in the Constitutional court leading to a Supreme court on the American model – as others have done. Even former European Court Judge Giovanni Bonello had made a similar point in different contexts. He referred to the importance of maximum judicial improvements that are required locally.’

[480] Votes of Justice and Interior Ministry. Malta parliament – 18 Nov. 2008. Hon Debono spoke of the jury system, asking whether a judge should deliberate with the jury and how jury members should be selected.: ‘I had researched this subject and may do an adjournment; from time to time during a jury, there is debate on whether the jury system needs reform. E.g. should jury members remain alone or should a judge accompany them; what’s sure is that the system needs reform. The aspect of jury selection is ignored without the necessary debate and consideration debate as it is anachronistic.. Let’s look at how it’s done abroad in legal regimes. The system needs radical reform. Our present system does not provide for the early stage of jury selection.

This leads to lack of transparency of choice and impartiality- which should be the main point of jury selection. Our system now is approximative and leads to partiality. It also does not address the procedure as an ideal system of choice. In other countries, they utilise municipal councils who help with the selection system. I have other matters to address today, but, having no time, I wish basically to appeal for a reform the jury selection system.’

[481] Franco Debono, ‘Vision for justice,’ Times of Malta. 11 Sept. 2011, Appendix A. ‘The jury system should be fine-tuned, considering the participation of judges with the jurors, who must receive basic training before trial.’

[402]General Estimates 2012 – Votes of the Justice and Interior Ministry. Sitting 421 – Malta parliament of 2 December 2011 – Hon Franco Debono mentioned the habit of a judge participating with jurors in deliberation, as this was not mentioned in the November Motion – and added by an amendment.

156 of a legal nature. It is true that judges are judicants, but you need a level of legal points. We must now consider the possibility of the participation of a judge with jurors’ deliberation as happens in other countries. Let’s discuss it; I repeat that our system is good, but it must be fine-tuned. Other colleagues on both sides of the house will mention other elements and surely other in society in general.

I felt that these subjects in the present situation of 9th November 2011, when I presented this motion, should be raised to national debate. In our democracy, this parliament is the highest institution in the country not just theoretically but pragmatically. During my 4 years in Parliament [483] I have emphasised the deputies’ role [484]. I felt we must understand more the deputy’s role. [485]. It’s not like a party delegate. The meaning of the role of deputy is that he represents the people who elected him on a party ticket. [486] I like to say that

While it’s not a private members’ motion, I wish to talk about juries. It’s a good system but but we must consider the participation of the judge in the jurors’ deliberation; the system needs review.’

[483] Votes of the Justice and Interior Ministry – Session162. – Malta parliament – 19 Novemebr 2009. Hon Franco Debono, from 2009 had a clear vision of the role he had to fulfil in Parliament which is related to his work ‘as a backbencher and the youngest in government. I don’t want to come to parliament to warm the chair. I believe that all parliament’s members, on both sides of the House, wish the country a lot of good, though not in the same way. Different opinions make democracy rich. In my humble opinion, I feel that all my colleagues have a message to give and wish to contribute to the country’s progress together with that of its people.’

‘…but for now I wish to speak about the matter of cassettes; here we made progress with the use of the digital system; but let’s change that blessed legal system to adapt it to today’s realities. I could have avoided speaking about this matter – just letting things be and then do my work accordingly. I don’t feel I should do this as I want to fully do my work…as I’m doing. Thus I made pressure to have the cassettes changed.’

[485] John Busuttil. ‘Absent from parliament but present and relevant in reforms.’ Exclusive interview with Franco Debono, Illum, 9 June 2015; Hon Franco Debono spoke of the role of a deputy which he compared to that of a party delegate, with the difference that the latter is a representative of the people. ‘We need to reach a state where a government deputy may criticise the government when disagreeing with it without any disaster happening. Parliament must not be a rubber stamp of the government but a watchdog for the people., watching the government between an election and another. Obviously, generally he votes with the party that elected him’…but…there’s a difference between a party delegate and a people’s representative elected as people’s representative within the party; but ultimately he represents the people. The representational element of the deputy is superior to all else…I said this in june 2012, before my thesis in 1999 and I sustain it today still…as Malta’s parliament must take this direction and work accordingly – in consistence with the spirit of the constitution, of the Westminister model and of all world parliaments.’

[486] Franco Debono. People greater than the party,’ Times of malta.com 28th December 2009. ‘The people are sovereign and the Constitution supreme. No one is greater than the people; they are represented in parliament. Therefore parliamentarians are not party delegates but representatives of the people elected on a party ticket, which is different.’

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Deputy represents the people within a party; [487] in the name of a party, but ultimately representing the people. The representative element of a deputy is above all otherelement. [488]

This House of Representatives is the legislature, a deputy is elected to a legislature, and the government is part of this legislature and when the people elected me in it [439] it honoured me; the privilege but also the responsibility [490] that

[487] Adjournment of Dr Franco Debono – Excerpt from Sitting 186 – Malta Parliament 27 Jan 2010 – Hon Debono described the role of the deputy as a representative of the people within a political party when it is elected: ‘An elected party to parliament is not wholly representative but elected members from the party. The president and secretary of a party are not elected to parliament. They answer to party delegates, counsellors, executive. But the elected deputies have 2 loyalties, ideologically to the party and to the electorate. The latter cannot be ignored.

Mr President, with humility I say today you no longer have the strong polarisation of the past; when you assume an important role, the people’s representative function is more important. A clear distinction must be made between delegating and representing. A voter votes for a person due to party loyalty first, and then as loyalty to a person. Let’s however remember that an elected person represents his constituents but also the whole population.’

[488] No confidence vote in Government – Sitting 439 – Malta Parliament 25 January 2012 – Hon Franco Debono emphasised: ‘I am not a journalist but an elected deputy. Thus I cannot simply write or discuss internally as I am addressing the public who gave me the strength of the vote, so I take those measures that are first proportional and then effective. If what I say makes no sense or is capricious, I am not justified; if it makes sense, I expect to be heard – wholly or partially. My duty is to say what’s relevant and useful. I feel that a deputy’s position is to speak proportionately and effectively according to the needs of the country and its population and its requirements. Simply having the right to speak is not enough. I must not simply speak, but speak in the name of the people. I have been doing this as it is my work. We are not here talking of a parallel universe or two planet which represent the Cabinet and the people separately while these are the outer circle of a centre which is inhabited by the PM and the Cabinet.’

[489] Adjournment of the House under Permanent Order no. 13 – Discussion on acquisition by purchase or lease, of St Philips Hospital by Government – Sitting 508 – Malta parliament 15 October 2012 – Hon Debono said: ‘Mr president, we are ridiculing this country. I got 2000 votes instead of a Parliamentary Secretary and a Minister. I was not nominated by a PM; thus ignoring me is an insult. I contributed in Parliament and raised issues not afraid of personal attacks now and in future. If they wish to ignore me and carry on with the contract, is already suspicious! Even on its own. The investigative authorities of the country must check this enthusiasm. So I wanted that the enquiring magistrate to investigate on my initiative. Let’s leave laughter alone and not attack he who opens his mouth and is a threat!’

[490] General Estimates 2012. Votes of the Justice and Interior Ministry – Sitting 421 – Malta Parliament – 2nd December 2011. ‘I could have remained a lawyer only, as other deputies, hardly speaking and stopping there. I could have done this by I went beyond. Apart from doing my work as lawyer and as an elected deputy by the people, I felt I should make pressure so that a law passing through Parliament with unanimous approval and was declared by the European court in Strasbourg as a fundamental right, as per the oath I took to abide by the Constitution, it seemed to me that this had to be implemented. Thank god, though late, in 2010 this provision became effective though with consequences due to lateness.’

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I represent [491] in this House as a legislator. I took an oath to respect the Constitution, to do my duty as a deputy [492] in this house as part of this legislature, I felt I should present this motion to:

[491] Adjournment of Hon Franco Debono – Excerpt from Sitting 36 of 30 Sept. 2008 – Hon Dr Debono in this speech in his first year in Parliament shortly after being elected, had already a clear idea of the work expected of him in this Chamber of Deputies, also as representing constituents, and consequently explained his views eloquently:

‘Mr Speaker, I fully believe that politics is the noblest instrument for the good of communities. It’s an efficient instrument to improve life. This is why this institution is treated with great respect by the people. The deputy also represents the area which elected him – and this even constitutionally. Obviously within the framework of the party he is member of; however the deputy promotes the aspirations, preoccupations, complaints of his constituents.

I feel that the deputy’s role is to put on the house agenda the issues he observes in his country and his area. A deputy must try hard to see solutions and their implementation even if he becomes parliamentary secretary or minister. One must also not abandon his functions which represent fundamental rights; the constitution spells this out and has done so over the years within the evolution of the parliamentary system. The deputy remains the voice of those he represents. We must address this matter together and promote it’

[Motion 439 – Malta parliament – 25 January 2012 – Hon Debono insisted that: ‘If the PM has a close person advising him and to him a deputy is of little importance like a toy, as a result of long years in leadership, I don’t know. Yesterday I heard Minister Joe Cassar mention psychological profiles in a context, but if he does a psychological profile of the country, we would understand its problems better. He who gives little importance to a deputy also treats the people as a toy.

Mr President I am avoiding mentioning names. Many people say I am right in my proposals. This means there were others who should have made them without doing so. This is my first point. Our parliamentary system expects that government is led by a PM who selects a cabinet. If someone in cabinet does not fulfil his duties, this is related to political responsibility which obviously also the PM has.’

Let me now come to my second point related to party loyalty and teamwork mentioned also her in debate. Party loyalty functions within the constitution. It’s different from a loyalty in a band club, or football, especially for deputy. When a deputy is elected in the name of a party, he is also a people’s representative so his first loyalty is to the constitution and his constituents. Also a Minister cannot use the concept of party loyalty as a pretext to roll over everyone, including parliament and he cannot pretend that a backbencher closes his eyes and mouth. Also the backbench represents the electorate. Thus in all circumstances, a backbencher is not a puppet or a passive person about what the government is doing as the party loyalty operates within the context of separation of powers between parliament and Government.

Any other way is dangerous – and this is a preoccupation – a presidential way of administration where the PM and cabinet decide everything without the efficient safeguard of the presidential system which are the President and Congress elected separately in different elections. I feel that this is happening due to a weak control of institution method, including this parliament. Democracy is not only party loyalty. The constitution is certainly not a manual of party loyalty. Democracy is a system needing a delicate equilibrium between the organs of state where the executive has unlimited powers by the other organs, thus we would be sliding out of democracy; the worst territory we could end up in is oligarchy where a group snatches power or actually holds the PM hostage.’

159 ‘…I propose that this House of Representatives discusses the matters, and seeks solutions to measures and steps which must be taken and in which way.’

This is not a no confidence motion in anyone; these are points which I wish to be debated.’

Let’s debate them here, not on the broadcasting media, as Parliament is the highest representative organ of discussion. As I said, after presenting this motion, some of its points have already been effected while others need to be done. Let’s enrich this debate, let all contribute to the debate so reforms may be implemented in this sector. [493] In my motion I had to limit myself to major reforms. I have no doubt that my colleagues on both sides of the House, will contribute more ideas – maybe they disagree about some things – that’s why we are here, so we have the national interest before our eyes. I thank you.

[493] Adjournment of Hon Franco Debono – Excerpt from Sitting no. 190 – Malta Parliament – 8 Feb. 2010 – Dr Debono emphasised the importance of a deputy speaking on subjects conforming to the party ideology and about which he agrees both with his party and constituents:-

‘Why didn’t they go see my speeches now and in the past? They would have quickly seen my views! It wasn’t so difficult! I repeat that these institutions must be strengthened, so that nobody usurped parliament’s power. I repeat that we are living in a democracy, and this is not a totalitarian state! A deputy that speaks of issues that conform to the ideology of his party is not a rebel. He is a deputy doing his work. An editor does his editor’s work and a deputy does his work of a deputy elected by the people.’

160.

Appendix A and B are already in English.

The Sunday Times of Malta, September 11, 2011, 00:29 by

Franco Debono

Vision for Justice

Pages 161 to 164 are already in English.

Best, Ant