Repubblika willing to drop ECJ case if new laws embrace Venice Commission recommendations

Rule of Law NGO Repubblika has declared itself ready to withdraw its case against the government at the ECJ once it is fully satisfied that the bills submitted to Parliament fully embrace the recommendations put forward by the Venice Commission, and urged by Repubblika. 

The NGO had filed a court case challenging the system by which judges and magistrates are appointed, saying the existing system gave the prime minister "arbitrary discretion" when selecting candidates. A  Maltese judge had referred the matter to the European Court of Justice (ECJ). 

Repubblika has welcomed the Venice Commission’s opinion on institutional reforms, but said there is much still to be done to overcome institutionalised resistance to the Commission’s recommendations.

“It is satisfying to see that the government has been forced to accept reforms to our institutional set-up that it spent the last two and a half years forcefully resisting. These especially include the exclusion of the government from the choice of members of the judiciary. Right up to its last proposals in March this year under the stewardship of Edward Zammit Lewis, the government was trying to get away with loopholes intended to preserve its excessive powers. In this respect, the government has finally had to give in,” said the NGO in a statement on Saturday.

But the Commission itself yesterday pointed out that reforms are still at a “conceptual” stage, noted Repubblika.

“The real tests for genuine reform are ahead of us,” it said, pointing out that it was yet to see draft legislation and to be given the opportunity to comment on it before it goes to Parliament. “The government must take up the Venice Commission’s offer of submitting the drafts for its review before formal publication of Bills,” it said.

Even after Parliament adopts new laws, the government would need to bring them into force, pointed out the NGO, highlighting the fact that parliament had long adopted legal changes to the public prosecutor’s office which had remained “a dead letter”. “The government must not think it can get the Venice Commission off its back with the simple device of getting Parliament to adopt fancy laws, that the government proceeds not to implement,” said Repubblika. Thirdly, people occupying positions of authority in independent institutions “must act within all the initiative given to them at law, not in the service of the political party they support or in fear of the politician that put them there, but in service of the country and according to their conscience,” the NGO argued.

“Legislative changes are nowhere near enough to start healing Malta’s state of impunity and lawlessness. On the same day the government congratulated itself for abandoning its futile resistance to the modernisation of our laws, it also had to face the fact the world news was reporting another scandal, more crimes perpetrated by the colleagues of Robert Abela and Edward Zammit Lewis.”

The whole point of having independent police, prosecutors and judges is so that people like Joseph Muscat, Keith Schembri, Konrad Mizzi and Chris Cardona face justice, said Repubblika, adding that it was “clearly very far from passing that test.”

Despite the fact that civil society activism forced Joseph Muscat out of power in 2019 it said, ‘crooks continue to rule,’ added Republlika, saying that it was proud to see the government announce reforms it never wanted to consider.

“Judicial reform has been precipitated and prioritised by the government because of Repubblika’s lawsuit filed in April 2019 and now awaiting a decision of the European Court of Justice. The government needed to implement the changes to avoid an embarrassing outcome of that decision, which, in any case, would have forced it to make changes the Venice Commission recommended two and a half years ago.”

Saying that it would continue to look for ways to spur the government into action and to comply with European and international democratic norms, it added that “we’ll do that even if we’re accused of treason and of working against Malta, as we have been by this government throughout our existence.”

Malta had experienced judicial rulings explained only by the partisan bias of the judge or magistrate, said the NGO, describing the state of affairs as “totally unacceptable.”

“We continue to expect holders of offices in independent institutions to be true to their function and to act independently of the government. This is especially the case for members of the judiciary. Excluding the government’s interference in future appointments does not change the fact that the judiciary as it exists today has been captured by 7 years of abuse in appointments to the bench made by the government.”

Repubblika promised to continue to file complaints, reports and evidence to challenge and spur the institutions to take action as they are required to do by law. “Even as we remain sceptical of the willingness and ability of our institutions – the police, magistrates, the Attorney General – to resist government encroachment and the abuse of human rights, and to reverse impunity enjoyed by criminals coming from or associated with the political world, we will continue to bring to them complaints, reports and evidence to challenge them to take the action they are required to take by laws which they all too often disregard.”

In its statement, Repubblika expressed its gratitude to the Commission, its rapporteurs and the Parliamentary Assembly of the Council of Europe, particularly PACE rapporteur Pieter Omtzigt, that engaged the Venice Commission “in spite of the resistance, often even opposition, of Malta’s government.”

“We look forward to the effort ahead of us to ensure the government delivers on its promises and to work on the much needed reforms to our institutions, including the ones the government continues to avoid,” it said.