Constitutional reform has gone from taboo when I was formulating it ten years ago to craze right now.

Some of the interest is genuine, while some comes from people who tried so hard to silence me back then but now seem intent to make up for lost time by going overboard, forgetting our system subscribes to the Westminister model and becoming overnight experts in the process. They would have the country go from one extreme to the other, missing the Aristotelian golden mean.

To compound matters further the government is under immense pressure from foreign bodies like the Venice Commission to act fast. The new administration is showing initiative and courage but like everything performed under excessive pressure, the outcome is bound to have undesirable outcomes. One must ensure excessive pressure does not tip the balance towards the other harmful excessive extreme.  

Take judicial discipline and impeachments as an example.  As I had explained in parliament in May 2012, having the right procedure to make the right appointments in a transparent and meritocratic manner would make impeachments almost irrelevant in a judiciary of 50 or fewer members. 

The Westminister model to which we subscribe is not based on watertight compartmentalisation but rather a system of checks and balances. The impeachment procedure is a textbook example. The Constitution demands the highest level of approval, a two-thirds majority, by the most representative organ, parliament, for an impeachment to succeed. Checks and balances in action - the courts can declare an act of parliament null and void and parliament can impeach a judge. 

Why parliament and why the two-thirds requirement? It is an indication of the high regard and respect in which the Constitution holds the judiciary, which is generally made up of dedicated and hardworking individuals,  role models of integrity, honesty, discernment and justice. Removing them from office should be a matter of great sensitivity, seriousness and solemnity, sealed only by approval from the people’s representatives, across party lines. 

My private members' motion dated November 8, 2011 had called for reform of judicial appointments in point 11 - "a revision of the amount of years and experience required for the appointment of the judiciary, as well as a revision of the whole procedure how the judiciary is chosen, the age of retirement, together with their conditions of work" - and also referred to impeachments in the subsequent point 12, calling for "a thorough examination of the consequences of the outcome of the latest procedure of impeachment, the efficacy of this mechanism and the Commission for the Administration of Justice as it presently exists, which is an important constitutional check and balance, and to determine if a revision is necessary."

Previous impeachment procedures, but then even subsequent ones, had given the impression of a lame and ineffective procedure that always end up being politicised, with voting strictly according to party lines.  So what is the solution? Should we throw away the baby with the bathwater? 

The Venice Commission, and others, have proposed having a committee of the judiciary itself through the Commission for the Administration of Justice that would be responsible for discipline and impeachment, instead of the most representative institution of the land in the form of parliament. 

MPs should not be 'terrorised or ostracised for voting according to their conscience in the national interest', writes Franco Debono.

First of all, as I had proposed way back in 2011, the Commission's composition should be seriously reconsidered to ensure it is immune from potential political interference. 

Secondly, the committee proposal would be a huge step backwards, eroding an almost perfect system of checks and balances.  Unlike politicians, members of the judiciary are not required to give an account of their actions to parliament and do not submit themselves to the electorate's judgment every five years.

Parliament can pass a vote of no confidence against an erratic or incompetent minister who may also lose his seat in an election, but that does not apply to judges. And though the vast majority of judges are the finest role models of propriety, fair judgment and correctness, in the last fifteen years three judges have faced criminal charges. Hence the benefit of checks and balances between the various organs.   

One must also ask whether it is viable, logical or practical to have a small judiciary impeach one of their own.  Having hundreds or thousands of judges and magistrates scattered in various different courts across a large country, most not knowing each other, is different from having a very small number working in the same institution day in day out. Surely difficult, probably embarrassing, definitely immensely complicated. 

In reality, the solution to perpetual failures in impeachment procedures is not constitutional but political. It lies with MPs fulfiling their true roles rather than being party puppets.  Ultimately parliament is a faithful reflection of the electorate's wishes - that is democracy! It is up to the electorate to determine a composition of parliament where MPs, in certain situations at least, can rise above blinkered party loyalties and be inspired solely by the national interest. 

Since there is nothing inherently wrong in the procedure itself, if there is anything to change besides the composition of the Commission for the Administration of Justice, which should be completely free from political interference, it is the attitude of MPs. 

It is up to parliamentarians to make the impeachment procedure effective, in line with what I practised and preached in parliament as an MP, crystallised in a speech I gave on June 12, 2012.

Franco Debono.

“One of the areas in which I feel I have given a valid contribution in the last four years that I have been in Parliament is about the true role of Members of Parliament. I consider that there is a need to understand better what this role entails. The significance of the role of a member of Parliament is not as a delegate of the party, but as a representative of the people, elected on the party ticket. There lies a difference between a party delegate and a representative of the people elected on a party ticket. I have always insisted that a Member of Parliament represents the people within a party structure, in the name of the party, but ultimately is a representative of the people as a whole, not just his party.” 

So, in reality, the solution is not of a constitutional or legal nature but a political one - having a normal Parliament composed of MPs who are loyal and faithful to their party but who are not terrorised or ostracised for voting according to their conscience in the national interest when the need arises, and having an electorate that ultimately rewards such MPs. 

Going overboard with constitutional reforms due to excessive pressure or duress will not solve anything when solutions are much simpler. As long as MPs who stand up to be counted are castigated or ostracised by their own party, it will be very difficult to have a normal Parliament, in line with the rest of the world, where these things happen on a daily basis. This erodes not just these checks and balances, but also so many others which depend on MPs fulfilling their true role, as happens in the vast majority of parliaments around the globe.

The government’s initiatives are laudable, the Opposition is actively contributing and civil society is very proactive. Let’s just not go overboard.

Franco Debono is a practising criminal lawyer and a former Nationalist Party MP.