No, it’s not free speech - Ranier Fsadni

No, it’s not free speech - Ranier Fsadni

Franco Debono. Photo: Darrin Zammit Lupi

Franco Debono. Photo: Darrin Zammit Lupi

Justice Minister Owen Bonnici still can’t get freedom of expression right. When asked about the latest outburst by the Law Commissioner, Franco Debono, Bonnici said it was protected free speech. So has Debono’s target, Joseph Muscat, whom Debono has now described as Malta’s most corrupt politician ever.

Obviously Bonnici is being consistent with what he has said in the past. But since he was mistaken then, all he’s managing to be is consistently wrong. He was mistaken to defend Jason Micallef’s taunting of social activists, saying the Valletta 2018 chair had free speech rights. Bonnici did so while debating Dutch officials, no slouches on free speech, and he left them flabbergasted.

The issue here, as it was with Micallef and other public officials, is not about Debono the individual. It’s about the Law Commissioner, a public role, no matter who occupies it. Debono the individual has a right to free speech. But the Law Commissioner is circumscribed by office in what he can say. With senior public roles come responsibilities that preclude certain kinds of speech.

Let’s put it this way. Bonnici the man has protected free speech too. But the Justice Minister, a role currently occupied by Bonnici, does not. If the minister does not personally agree with a Cabinet decision, he is not free, as  a minister, to express his disagreement publicly. He carries Cabinet responsibility for the decision.

If he really cannot stomach it, then he should resign from the Cabinet. Then, free of the role, he can be free in his public criticism.

The UK has a recent history of (say) foreign secretaries who resign their posts in order to launch a scathing attack on their own prime minister’s foreign policy decisions. Geoffrey Howe over Margaret Thatcher’s European policy. Robin Cook (leader of the House when he resigned, but wrapped in the mantle of a former foreign secretary) over Tony Blair’s decision to go to war in Iraq. Boris Johnson over Theresa May’s Brexit deal.

No one thinks it bizarre that these politicians had to resign before giving rein to their personal views. On the contrary, it’s bizarre to think otherwise.

It is embarrassing to have to spell this out, although not as embarrassing as having the Prime Minister and Justice Minister distorting what free speech entails.

Nor is this a principle that only binds politicians. It binds every public official. If you had to take Muscat and Bonnici at their word you wouldn’t be able to make sense of public service rules.

The truth has nothing to do with it. It’s duty that’s relevant. Debono is failing in his responsibility to his role

Diplomats need permission from their superiors before they publish a personal opinion piece. Senior civil servants certainly do not have the right to express personal opinions about policy. Indeed, if you occupy a senior position in the public service you cannot simultaneously occupy even a position on your local council (not even as an independent).

Are all these people losing their fundamental rights? Of course not. What they don’t have is the right to be a senior civil servant on their own terms. With senior public office comes the responsibility to be – and appear to be – impartial. You cannot fulfil your duties properly if you don’t.

The Law Commissioner is self-evidently a senior public role. So Debono has no business calling the Prime Minister the most corrupt politician ever, just as he’d be equally out of line if he’d called him the best ever.

The truth has nothing to do with it. It’s duty that’s relevant. Debono is failing in his responsibility to his role. By his own account, the argument he’s making is a political one – something ruled out as long as he is Law Commissioner.

Two things follow from all this. First, it’s not just Debono who betraying his role. So is Bonnici. For a justice and culture minister, free speech is part of the portfolio. To get it wrong is not simply to make a mistake. It’s to fail to protect something that’s part of your job to promote.

Some might retort that Bonnici is getting free speech wrong by overprotecting it. No, he’s not. He’s distorting it. On this occasion, he happens to be dealing with a government critic. On previous occasions, however, he used the same reasoning to protect officials whose pronouncements could have had a chilling effect on real free speech.

Second, government critics would be wrong to sit back and enjoy seeing Bonnici and Muscat apparently entangled in their own web of sophistry – having previously protected cronies, now they appear obliged by their own reasoning to let off a harsh critic.

Such enjoyment would be short-sighted and naive for various reasons. Debono didn’t just say that Muscat is the most corrupt politician ever. He said that it’s not difficult to reason things out to make the ‘political argument’ for Muscat’s corruption. Well, if it’s not difficult, why has it taken him almost three years to spell out his reasoning?

Why now, not when the Panama Papers broke? To go by the readers’ comments section of the press, it’s assumed that the timing has everything to do with Debono feeling thwarted by the government and lashing out.

The press should be pursuing the Law Commissioner to explain his timing. Law commissioners are accountable to the public too. It’s short-sighted and naive not to demand accountability from them as well.

Likewise, we should be pressing Muscat and Bonnici on why Debono is being retained. If they invoke free speech, we should dismiss the excuse as invalid. They know this as much as we do, so why let them get away with it?

The principle goes deeper than bristling at lame excuses. It is detrimental to liberty to accept the argument that a senior public official retains freedom of speech irrespective of the responsibilities of his role. To accept that is to accept that the individual defines the office, instead of the office circumscribing the individual. It is to collude in the personalisation of power and authority, which we do at our peril.

This is a Times of Malta print opinion piece

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