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Ref. DC 185(2018)

Malta needs better checks and balances in government, says Council of Europe Venice Commission

Venice, 14.12.2018 – An opinion today adopted by Council of Europe legal experts of the Venice Commission finds that the power of the prime minister widely overshadows other government bodies, including the president, parliament, cabinet of ministers, judiciary and ombudsman.

Although the legal experts praise recent judicial reform as a “step in the right direction”, it proves “insufficient” because too many remaining imbalances risk the proper rule of law in Malta.

The opinion replies to two requests made in October this year: from the Legal Affairs and Human Rights Committee of the Council of Europe’s Parliamentary Assembly and from Malta’s Minister for Justice, Culture and Local Government, Owen Bonnici .

The Maltese Minister highlights an ambitious law reform programme over the past six years to strengthen good governance and the rule of law. While the Venice Commission praises the establishement of Malta’s Judicial Appointments Commission in 2016, for example, such reform falls short of fully ensuring the independence of the judiciary – and a proper system of checks and balances in government overall.

Based on their visit to Malta last month, the experts criticize the “double role” of the attorney general as government advisor and prosecutor as “problematic”.

In parliament, paying MPs only part-time salaries negatively affects their ability to operate independently from the executive.

While the president may act as a moral authority, s/he does not have sufficient powers to act as an effective actor in the system of checks and balances, the experts say.

Taking into account the prime minister’s powers, notably his or her influence on judicial appointments, “crucial checks and balances are missing”, the experts add. “This problem is accentuated by the weakness of civil society and independent media,” they conclude.

Indeed, the Parliamentary Assembly’s request relates to the case of assassinated investigative journalist Daphne Caruana Galizia and the need for a free press. While the Venice Commission lacks the mandate and competences to examine specific criminal investigations or the veracity of allegations of individual cases of corruption and money-laundering made by the murdered journalist, the experts stress Malta’s “international obligation” to ensure that media and civil society play unencumbered and active roles in “holding authorities accountable”.

As a result of these findings, recommendations to Malta include the following:

·         Judicial vacancies should be publicly announced, an enlarged Judicial Appointments Committee (JAC) should vet and rank applicants, including for the position of chief justice, and the JAC should propose candidates directly to the Maltese President. Dismissals of judges and magistrates should not be made by parliament. The constitution should be amended to provide that judgments of the constitutional court finding a legal provision unconstitutional as such will result directly in the annulment of that provision without intervention by parliament.

·         To remove the double role of the attorney general, an office of an independent Director of Public Prosecutions or Prosecutor General or Public Prosecutor should be established. This DPP should take over the prosecuting powers from police and the AG, who could remain the legal advisor of the government.

·         The position of the president should be strengthened by attributing to him or her powers to act without the advice of the prime minister and possibly by electing and removing the president by qualified majority only.

·         MPs’ salaries should be increased to allow them to focus on parliamentary work. Parliament should be strengthened by tightening rules on incompatibilities with respect to appointments of MPs to officially appointed bodies. MPs should benefit from non-partisan information to perform their controlling function (increase research staff or establish a senior consultative body).

·         The appointing powers of the prime minister, regarding independent commissions and permanent secretaries, should be reduced. Appointments to positions of trust should be strictly limited by law.

The full text of the as-adopted opinion will be made available on Monday 17 December on the Council of Europe’s Venice Commission website.

Contact: Panos Kakaviatos, Spokesperson/Media officer, Tel. +33 6 98 37 64 04