Malta’s wobbly constitutional and rule of law reform

After long delays, the Maltese government is seeking to hastily implement constitutional and rule-of-law reforms as pressure from European institutions builds up. Parliament is expeditiously considering ten bills before it. While the reforms aim at rebalancing and depoliticising key state institutions and processes, including the appointment of the Chief Justice and the Malta’s President, they do not go far enough, appear contradictory and may breed more complications – writes Victor Paul Borg.

A Europeanised reform process

Despite recognised problems, constitutional and rule of law reforms have been moving slow. A number of engagements with European institutions have given impetus and urgency to these reforms.

The EU Commission has opened a formal ‘dialogue’ under the ‘the Rule of Law Framework’, making Malta the second EU country after Poland to be subjected to this procedure designed by the European Parliament in 2014.

And over in Luxembourg, the European Court of Justice (CJEU) is hearing a challenge to Malta’s system of judicial appointments – as well as a request to revoke thirteen percent of the country’s judiciary – under its preliminary reference procedure. The CJEU is expected to rule that Malta’s existent system of appointment falls short of ensuring judicial independence, although the judgement is also expected to take into account the reform being put through parliament if it passes into legislation.

The obligation to report to the Council of Europe’s Moneyval committee in October 2020 has become a deadline of sorts because, unless Malta demonstrates that it has bolstered measures against financial crime and related corruption, Moneyval is expected to put the country under what is known as an enhanced follow-up procedure. This is a form of censure – popularly known as the greylist – that would be a particular body blow to Malta’s financial services industry, which employs four percent of the country’s workforce. Malta could end up being the first country in the EU to be put on the greylist. 

All of this has led to the internationalistion of Malta’s rule-of-law weaknesses, an issue that became apparent in the international glare that followed the assassination of journalist Daphne Caruana Galizia almost three years ago.

Checking the powers of the majority and executive

The ten bills are now making their passage through parliament in what the Justice Minister told the Venice Commission would be the first package of reforms. The bills deal with appointment and removal of members of the judiciary; appointment of Malta’s President; reform of the Permanent Commission Against Corruption; new powers for the Auditor General and Ombudsman to report directly to the Attorney General in findings of corruption; provisions for judicial review of the Attorney General’s non-initiation or discontinuation of prosecutions; shifting the power to appoint key State figures from the Prime Minister to parliament or cabinet; limiting ‘persons of trust’ employments; and rules for removal of key State figures particularly the Attorney General and State Advocate.   

The introduction of a proposed ‘anti-deadlock mechanism’ threatens to undermine the objects of the reform.

The reform measures that have now been transposed into bills had formed the basis of an Opinion by the Venice Commission on 19 June 2020, which had guardedly pointed out that ‘as with any preliminary proposal or concept paper, a full assessment can only be made when concrete texts are available’.

There is little contention over some of the provisions, including the bill to define and limit the employment of so-called ‘persons of trust’. These appointees that bypass normal civil service recruitment procedures are theoretically needed in positions where a political leader needs people of her or his personal trust, but in recent years their numbers have swollen. The new law seeks to limit these appointees only to those employed as aides or consultants to Ministers.

Yet the law makes no mention of the present appointees – will they remain in their positions, and provisions apply for new appointees only? The insidiousness of these persons of trust is that some of them have been acting as enablers in the corruption machinery that has engulfed the Maltese government in recent years.

Rebalancing appointment of Chief Justice, key office holders

In other bills setting rules for appointments of key State figures – Chief Justice, President, Ombudsman, and chairperson of the Permanent Commission Against Corruption – there is a common streak that is antithetic to the spirit or essence of the reform. The introduction of a proposed ‘anti-deadlock mechanism’ threatens to undermine the objects of the reform.

Under the proposal, these four State figures would be appointed by a two-thirds parliamentary majority, which would normally require convergence between the two dominant and cohesive traditional political parties. The bills specify that if a candidate nominated by the government fails to garner a two-thirds majority, a second vote would be taken after seven days and if two-thirds vote remains elusive, then the third vote seven days later would pass by an absolute majority (of over 50% of the vote tally).  

Considering that the ruling party since independence in 1964 has always had the absolute majority of members in parliament, the new rules would ordinarily enable the ruling party, or government, to ultimately appoint the person of its choice. All it would take is three votes over a span of two weeks.  

The proposed reform keeps the door ajar for government abuse in the appointment process.

In its opinion, the Venice Commission put emphasis on the implications of a potential ‘deadlock in the future’. It proposed that, in the case of the Chief Justice, ‘a suitable anti-deadlock mechanism might be that the Chief Justice be elected by the judges of the Supreme Court if there is a prolonged stalemate in Parliament for the election by a qualified majority in Parliament’.

Yet the government has not heeded the Commission’s exhortation, and the bill as it is keeps the door ajar for government abuse in the appointment process.

Although the choice of the current Chief Justice, appointed four months ago, was inspiring because the individual, Mark Chetchuti, commands widespread respect for rigorousness and integrity, the law should not be reliant on goodwill for enlightened decision-making – that’s the system of emperors. Safeguards must be built-in for those situations in which a shrewd and charismatic Prime Minister might seek to meddle in the justice system through a pliant Chief Justice.

The law should not be reliant on goodwill for enlightened decision-making.

As the Venice Commission wrote in response to Maltese Justice Minister’s argument that the appointment of Chetchuti shows that the system proposed works, ‘Even if the political parties in Malta should be commended that they seem able to reach agreement on such elections, it cannot be excluded that such a deadlock could arise in the future. The Chief Justice has such an important position that this situation must be avoided’.

The Chief Justice’s power includes assigning members of the judiciary to the different courts, and this could lead to a potential situation in which a rigorous constitutional judge could be assigned to a court that has no consequence on government or State actions, such as the Family Court.

The Chief Justice also has powers regarding complaints against members of the judiciary for misconduct. In a recent case, the Commission for the Administration of Justice (CAJ), the high level commission chaired by the President and tasked with appointment and censure of members of the judiciary and lawyers, informed Repubblika, a civil society organization, that a complaint it had made against a judge could not be acted upon because only the Chief Justice and Justice Minister can make complaints under the constitution.

Appointment and removal of judges

This leads to another point: the system of removal of judicial officers as set in one of the bills is unworkable because of the composition of the CAJ. The bill sets that proceedings against errant members of the judiciary would start at the Committee for Judges and Magistrates, and if the committee feels that there is a prima facie case for removal or impeachment, the proceedings escalate to the CAJ.

The ten-member CAJ includes the Chief Justice, who is the deputy chairperson, as well as four lawyers active in court litigation. The presence of these members creates issues of fair hearing if they have to sit on the body that removes or impeaches a magistrate or judge. This is because the Chief Justice could be the very person who makes the initial written complaint, while the presence of litigating lawyers in bodies that censure or appoint members of the judiciary also impinges on fair hearing principles.

In the event of proceedings to remove a member of the judiciary, half of the members of the CAJ would be in conflict with jurisprudence on ‘objective impartiality’ if they had to partake in proceedings. And if they recuse themselves, the accused could be able to challenge a decision taken by only fifty percent of the members, including the President (chairperson of the Commission), who hails from the political camp.

The bill on the appointment of judges has two conflicting processes.

The bill reforming the system of judicial appointment is also a mishmash. It provides for two conflicting processes. On the one hand, there will be an open, rolling call for applications that enables any eligible lawyer to apply for judicial office at any time. On the other hand, specific vacancies and calls for applications are set to be announced or advertised.

Since appointments would be made for specific vacancies, the purpose of having a rolling call for applications is not clear. Would candidates who are assessed generally have to reapply for specific vacancies, and would they have to be reassessed again for that specific vacancy? On the other hand, how can candidates be assessed for specific vacant judicial office when the assessment criteria – which will become part of the law – is a list of generic attributes, without specifying that candidates would also be assessed for that specific vacancy?

And once three candidates are shortlisted and their names are passed to the President together with reports on each candidate’s suitability for that specific office – if that would be the understanding – then on what basis would the president make the choice if the assessment criteria does not provide for candidates to be assessed for that specific judicial office?

The muddled, if not unworkable, provisions on judicial appointment and removal coupled with the opaqueness of the CAJ means that accountability may remain elusive. 

From deadlock to politicisation

That under the proposed bills other key State actors – notably the President, the Ombudsman, and the chairperson of the Permanent Commission Against Corruption – will be appointed in the same manner as the Chief Justice (two attempts at qualified majority vote in parliament, then lapsing to simple majority on the third vote) offers no reassurance that the new systems would not be subject to political abuse.

Consider the case of the three-member Commission against Corruption, which was set up in 1988 and has been ineffective. The current reform is an attempt to make it more independent by having one of its members appointed by the Prime Minister, another by the Leader of Opposition, and the third by a two-thirds majority vote in parliament. Yet the two-thirds majority vote in parliament reverts to simple majority on the third vote, so the government could still potentially get the candidate of its choice occupying the chairmanship.  

The Venice Commission has suggested that in case of deadlock, it would ‘preferable’ to have the appointment ‘revert to a neutral body’.

The bills in process do not even oblige the government to put forward a new candidate for the second vote. The bills only say that a new candidate ‘may be’ nominated prior to the second vote.

Instead of lapsing to a simple majority on these appointments, as the Venice Commission put it, it would ‘preferable’ to have the appointment ‘revert to a neutral body’. That body could be the Council of State, made up of former Prime Ministers and Chief Justices among others, and proposed by the Ombudsman a month ago. 

Yet the legal texts on the table fail to set the stage for meaningful reform that decisively redistributes power away from the party in government, which is the reason for the rule-of-law weaknesses in the first place.

Although the government has promised further Constitutional reform via the ongoing Constitutional Convention, skepticism about the progress of the convention abounds, and the current package of reform has gotten off on the wrong foot and sets a worrying tone in important respects. There is no sense that Malta is getting the overhaul in the constitutional setup – and the redistribution of powers – that is needed to bolster the country’s systematic rule-of-law malaise.

The opposition has threatened to block the constitutional amendments unless the anti-deadlock mechanism is revised.

On the contrary, instead of holistic reform the government has hastily started off with a fragmentaed and contradictory reform that may create even more complications.  

While the governemnt has the numbers to pass legislative reforms, it is unclear whether the bills that require Constitutional amendments – principally the ones that deal with the appointment of the Chief Justice and President – will actually make it through Parliament in the current form due to the requirement of two-thirds majority. The opposition has come out swinging against the anti-deadlock mechanism, and it stated that it will vote against these bills unless amended, which would block their passage.

Update 

In a unanimous vote on 29 July, following negotiations between the two dominant political parties, the Maltese parliament voted on bills that removed the anti-deadlock mechanism and stuck to an immutable two-thirds threshold in the appointment of key State figures - President, Chief Justice, Ombudsman, and chairperson of the anti-corruption commission. The law now states that if two-thirds parliamentary majority is not achieved, then the incumbent would stay put in his post until the parties manage to coalesce around a candidate who could then garner two-thirds of the votes or more. These provisions are thought to provide an incentive for the parties to agree around a candidate.

Victor Paul Borg is a Maltese journalist/writer and photographer who has worked in various countries and published a range of work around the world. He currently does investigative journalism and analyses, with a specialty in justice issues, mostly published in his native Malta.