Updated | Crucial checks and balances on Prime Minister’s powers missing - Venice Commission

Updated at 3.50pm with government's reaction

The Venice Commission has found that a system of checks and balances to regulate the Prime Minister’s powers in Malta is missing.

This emerged from an opinion, adopted today, by legal experts from the Commission, and comes after the Maltese government itself asked the advisory body to visit Malta to advise on how legal and institutional structures can be improved. 

A request in this regard had also come from the Council of Europe’s Legal Affairs and Human Rights Committee.

The Commission, an advisory body of the Council - after having visited Malta in November - said in the opinion published today that the power of the Prime Minister “widely overshadows” that of other government bodies, including the President, Parliament, the cabinet, the judiciary and the ombudsman.

The experts criticised the “double role” of the AG as government advisor and prosecutor, calling it “problematic”.

Another issue they flagged was related to MPs’ remuneration, underscoring that the fact that these are only paid part-time salaries “negatively affects their ability to operate independently from the executive”.

When it comes to the President, while they acknowledged that the person occupying such an office could act as a moral authority, they said that s/he “does not have sufficient powers to act as an effective actor in the system of checks and balances”.

Taking into account the Prime Minister’s powers, notably the influence on judicial appointments which comes with the role, “crucial checks and balances are missing”, the experts added. “This problem is accentuated by the weakness of civil society and the independent media,” they underlined.

The Commission also commented on the murder of Daphne Caruana Galizia. It said that - while it lacked 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 slain journalist - Malta has an “international obligation” to ensure that media and civil society play unencumbered and active roles in “holding authorities accountable”.

The legal experts noted that Justice Minister Owen Bonnici had emphasised that there has been an ambitious law reform programme over the past six years, which was meant to strengthen good governance and the rule of law, but its experts said that this wasn’t enough.

“While the Venice Commission praises the establishment 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.”

Recommendations

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

• 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 when judgments of the Constitutional Court find a legal provision unconstitutional, this as such will result directly in the annulment of that provision without intervention by Parliament.
• In order to remove the double role of the AG, 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 the police and the AG, who could remain the legal advisor of the government.
• The position of the President should be strengthened by attributing to that person 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 adopted opinion will be made available on 17 December on the Council of Europe’s Venice Commission website.

Opinion focuses on past administrations’ laws and systems - government

In a statement, the government said it was taking note of the Venice Commission’s draft opinion, and that it would be giving a full reaction when the full text of the document is made available later this month.

It said that the opinion’s comments focused “on laws and systems that were passed or implemented years back, and not about laws introduced by this government”. Moreover, where laws enacted by the current government are made reference to, these are described as steps in the right direction, the government said.

The government also noted that the Justice Minister had today addressed the Commission’s 117th Plenary Session, where several issues, amongst which the published draft opinion, were discussed.

“During his address, Bonnici explained Malta’s constitutional framework, changes adopted in the constitution, and also laws enacted so as to strengthen democracy and the respect for human rights. The minister also affirmed the government’s will to continue to adopt systems and measures to further strengthen the rule of law in Malta,” the statement said.

Commission President Gianni Buquicchio and rapporteur Martin Kuijer both had words of praise for the Government of Malta,” the government added.