Updated | Venice Commission praises Maltese steps towards adequate checks and balances

Venice Commission welcomes constitutional and legislative proposals but also wants MPs to start addressing unconstitutional laws decree by high court • Robert Abela says this is an unprecedented first set of reforms to strengthen good governance

Updated at 6:25pm with Robert Abela's comments

The Venice Commission has welcomed several proposals for constitutional and legislative changes by the Maltese government, in an opinion adopted today.

The proposed changes came in response to a December 2018 opinion by the Council of Europe body on Constitutional arrangements and separation of powers, and the independence of the judiciary and law enforcement in Malta.

The opinion came to the conclusion that in the present Maltese Constitution, the Prime Minister is clearly the centre of political power. “Other actors such as the President, Parliament, the Cabinet of Ministers, the judiciary or the Ombudsman, have too weak an institutional position to provide sufficient checks and balances,” the Commission said.

Now the Maltese government has made proposals for legislative changes that attempt to implement many of these recommendations, as well as further legislative change.

“The Venice Commission welcomes the efforts of the Maltese authorities to implement various recommendations of its 2018 Opinion and welcomes that they do so based on a dialogue with the Commission. The Proposals would certainly decrease the powers of the Prime Minister, but the current proposals alone will not yet be sufficient to achieve an adequate system of checks and balances. More power should be shifted to the President and Parliament, which need to be strengthened,” the Venice Commission said.

The Venice Commission however also wants the Chief Justice to be elected by the judges of the Supreme Court in the absence of an agreement of two-thirds of the MPs for his or her election, as an anti-deadlock mechanism.

It also wants to oblige Parliament to act on the basis of decisions of the Constitutional Court finding a legal provision unconstitutional, as well as on recommendations by the Ombudsman and of the Commissioner for Public Standards on the domestic level, and the GRECO recommendations on the international level.

But the Commission said it was crucial that the current proposals be only part of a wider reform driven by the Constitutional Convention. “With a guided and structured dialogue opened between all stakeholders, not least civil society, the Convention should look into the overall constitutional design of the country,” the Commission said.

Prime Minister Robert Abela said the proposed changes were an "unprecedented first set of reforms to strengthen good governance", welcoming the Venice Commission's opinion.

He said the draft laws were prepared and will be presented to parliament from next week so that the reforms can be undertaken as swiftly as possible. Abela said the changes will strengthen Malta's reputation abroad and are a crucial step to enhance the systems of checks and balances in a democracy.

The changes agreed upon include:

• providing that the President of Malta be elected and dismissed with a qualified majority (with an anti-deadlock mechanism for election);

• enabling the President to exercise discretion, without advice from the Government, for the choice among the three candidates proposed for judicial appointment;

• supplementing the existing system of a rolling public call for judicial vacancies with public calls for individual vacancies;

• making public the names of the three qualified candidates directly proposed to the President by the Judicial Appointment Committee;

• increasing the membership of the JAC by adding two judges and a magistrate elected by their peers (in addition, including the Commissioner for Public Standards in the JAC and in the Commission for the Administration of Justice could be considered);

• removing of the Attorney General from the JAC, thus leaving the judicial members in the majority;

• introducing an appeal to the Constitutional Court against a decision by the Commission for the Administration of Justice on the removal from office of judges and magistrates, thereby excluding Parliament from this procedure;

• raising provisions dealing with the appointment, removal and suspension of the Ombudsman to the constitutional level and providing for the mandatory obligation for Parliament to debate the annual report of the Ombudsman (this obligation should be extended to important in exceptional cases);

• shifting the powers of appointment from the Prime Minister to the Cabinet for: (i) members of the Employment Commission, (ii) the Governor, the deputy Governor and the directors of the Central Bank of Malta, (iii) the Chairman of the Malta Financial Services Authority, (iv) the members of the Board of the Arbitration Centre, (v) the members of the Permanent Commission Against Corruption, and possibly (vi) the Information and Data Protection Commissioner;

• committing to shift powers of appointment for additional independent commissions from the Prime Minister to the Cabinet, including in the framework of the Constitutional Convention;

• enabling the Ombudsman, the Commissioner for Standards in Public Life and the Auditor General to directly report on corruption cases to the Attorney General and attributing them ex lege the status of injured party in corruption cases allowing them to appeal against non-prosecution.

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