Venice Commission flags risks of underpaid MPs and their appointment to public bodies

Higher salaries for MPs, a “public competition” to choose the police commissioner and the election of the president by qualified majority, are a few of the recommendations made by the Venice Commission.

The full report by the Council of Europe body was published on Monday afternoon.

While it commanded government for certain legislative changes enacted over the past few years, the Venice Commission flagged a number of concerns about the way in which appointments to various posts within the country’s institutions and authorities are made.

The commission is an advisory body composed of independent experts in the field of constitutional law.

The 29-page report included the commission’s view that underpaid MPs and their appointment to public bodies could erode their supervisory powers over the executive.

While the commission does not say, MPs should be full-timers, it proposes they enjoy higher salaries to enable them to concentrate more on their parliamentary work and act as effective watchdogs on the executive.

In a tweet, Prime Minister Joseph Muscat welcomed the report and noted that the issues flagged by the commission concerned “legacy legislation”. He said the government “generally agreed” with the observations.

Other recommendations include removing the power of the executive from judicial appointments.

The findings note that, despite the existence of the JAC, which was introduced in the last legislature, this could still be overruled by the Prime Minister.

“While the establishment of the JAC is in principle a welcome step, as compared to the situation before 2016, its composition is not in conformity with European Standards,” the report read.

It recommends that the commission be enlarged and that it should also vet the appointment of the Chief Justice, a role currently appointed by the Prime Minister.

The proposal is to have the Judicial Appointments Commission make its recommendations directly to the President, who then appoints new magistrates and judges without acting on the Prime Minister’s advice.

Another key recommendation is to split the functions of the Attorney General and create an independent public prosecution office.

The Venice Commission also recommends the election of the President by qualified majority in Parliament and the tightening of regulations relating to the appointment of MPs to officially appointed bodies.

The Venice Commission also proposed laws to regulate the number and functions of persons of trust.

"As with any reform, it is obvious that not only the texts matter, but also their implementation in good faith," the commission concluded.

The commission’s proposals followed a request by Justice Minister Owen Bonnici for an opinion on Malta’s legal and institutional structures of law enforcement, investigation and prosecution. The request was made three days after the Parliamentary Assembly of the Council of Europe (PACE) requested an its opinion on Malta’s constitutional arrangements and separation of powers and the independence of its judiciary and law enforcement bodies.

The commission noted that the request from PACE originated in a proposal to “seize the Venice Commission” by the rapporteur on the assembly’s report on the assassination of Daphne Caruana Galizia.

Malta to implement proposals

Addressing a press conference by video, Muscat said that the government intended to implement the proposals, adding that the recommendations were a valuable contribution to Malta’s upcoming constitutional reform.

The proposals, he said, came at the perfect moment, with the President having chaired the first meeting of the constitutional steering committee last month.

READ MORE: PL-PN steering committee ‘merely conducting an initial dialogue’ on constitutional reform

He said the government had consulted with the Commission after the draft opinion had been issued.

Muscat insisted that several reforms, including the introduction of the Whistleblowers Act, had been implemented since the Labour government was elected in 2013.

Justice Minister Owen Bonnici said that upon joining the EU, Malta had been assessed and its structures found to be in line with those of the EU. Like the Prime Minister, he said that the government in general agreed with the proposals.

Venice Commission recommendations

The following are some of the salient recommendations made by the Venice Commission for constitutional and legal changes to strengthen the system of checks and balances.

1. Judicial appointments and discipline

• Judicial vacancies should be published and candidates from inside and from outside the judiciary should apply to the Judicial Appointments Committee for a specific vacancy
• The JAC should have a composition of at least half of judges elected by their peers from all levels of the judiciary
• The JAC should rank the candidates, upon merit on pre-existing, clear and transparent criteria for appointment, taking also into account the goal of achieving a gender balance
• The JAC should propose a candidate or candidates directly to the President of Malta for appointment. Its proposals should be binding on the President
• Chief Justice should also be appointed with the same procedure
• The removal of a judge or magistrate from office should not be imposed by a political body;
• There should be an appeal to a court against disciplinary decisions directly imposed by the Commission for the Administration of Justice.

2. Attorney General and prosecutions

• An office of an independent Director of Public Prosecutions or Prosecutor General or Public Prosecutor should be established in Malta to hive off this function from the AG
• The office of the independent DPP would be responsible for all public prosecutions
• The powers of the new DPP should be subject to judicial review, notably as concerns
• non-prosecution, upon request by the victims
• The AG would remain the legal advisor of the government
• The Police remain responsible for investigative work

3. MPs

• Conflicts of interest should be avoided, inter alia by strengthening the rules on incompatibilities as laid down in Article 54 of the Constitution and tightening the rules as regards appointments of MPs to officially appointed bodies.
• Salaries of MPs should be revisited
• MPs should benefit from non-partisan information to perform their role of critical controller of the government
• Increase parliamentary staff that can assist the MPs in their work and/or the establishment of a senior consultative body
• Extensive use of delegated legislation should be avoided

4. Presidential powers

• Strengthening the Presidency by electing the President with a qualified majority in Parliament, combined with an anti-deadlock mechanism
• It would be preferable for the President to be more remote from the majority of the day
• President can only be removed by qualified majority only

5. Prime Minister’s powers

• Reinforce systems of checks and balances to mitigate the predominance enjoyed by the Prime Minister
• The judiciary, president, parliament and ombudsman need to be strengthened

6. Permanent secretaries

• These high-ranking officials should be selected upon merit by an independent civil service commission and not by the Prime Minister
• Permanent Secretaries should not be political appointees, but independent and permanent, high level, civil servants, who should be able to serve any government
• Perm secs should have security of tenure, until retirement or dismissal for good specified reasons

7. Persons of trust

• Introduce a constitutional amendment and legislation that allow persons of trust but limit their number and type of activities they are involved in
• Only activities directly related to the exercise of power should be considered as a valid exception from the general system of appointments in the public service

8. Police

• The Police Commissioner should be appointed following a public competition
• Police should be bound by instructions from the prosecution