The Venice Commission Opinion
The Government of Malta positively welcomes the opinion of the European Commission for Democracy through Law, known as the Venice Commission.
On the 13th of October this year, the Government published a letter which I sent to the President of the Venice Commission Gianni Buquicchio.
The letter followed a meeting held between the Government of Malta and a representation of the LIBE committee at the European Parliament in September.
Basically the letter said that during the past legislature and the present one, a substantial number of reforms were undertaken to strengthen the rule of law, including a law deleting time-barring by prescription on claims of corruption by holders of political offices, a whistle-blower protection act, a party financing legislation, a new Parliamentary oversight mechanism on appointment of Chairpersons of main regulatory authorities and non-career Ambassadors, Constitutional reforms for the creation of a Judicial Appointments Committee, and reforms in the field of artistic and journalistic freedom of expression.
In the letter I also stated that Malta also joined the European Public Prosecutor’s Office.
The letter also informed the President of the Venice Commission that most of those reforms were implemented for the first time in our history as a nation.
However, it also stated that the Government is open to bona-fide dialogue with all international institutions to implement further reforms for a better justice system and a stronger rule of law.
At the end of October, I had another meeting with President of the Venice Commission Buquicchio in Strasbourg. During the meeting, I discussed the request by the Government of Malta for a review with recommendations for the enhancement of rule of law and agreed that this is a positive opportunity to keep strengthening the rule of law in Malta.
I then met the Venice Commission at the beginning of November, accompanying Deputy Prime Minister Chris Fearne.
The meeting was positive and cordial and the Venice Commission acknowledged the considerable improvement in the sector. We also acknowledged that the Government was seeking to better the sector with further reforms.
On Monday, the Commission published its opinion that includes a number of recommendations for changes and reforms by the Venice Commission.
The Venice Commission recommendations mainly focus on laws and systems which are longstanding and were ‘inherited’ by this government. This is confirmation that the recent reforms which this Government has embarked upon were deemed positive and a step in the right direction.
The aim of the Venice Commission’s recommendations is to strengthen the framework of the separation of powers between the government, Parliament, and the Judiciary in Malta; to strengthen the independence and accountability of State institutions; and to implement change in various areas of public administration and the State, including prosecution and the forces of law and order.
In brief, the recommendations on judicial appointments are as follows: The further strengthening of the system of transparency introduced by this Government - whereas while previously appointments to the judiciary was at the Prime Minister’s absolute discretion, now this is done by publishing a call for applications; the composition of the Judicial Appointments Committee, also introduced by this Government, should be broadened to include more members of the Judiciary, to be elected by their peers and that the Judicial Appointments Committee should propose selected candidates directly to the President of Malta, who would be bound by that proposal, including the appointment of the Chief Justice.
On the discipline of members of the judiciary, the Commission recommends that the removal of a sitting Judge or Magistrate from office should not be possible through a simple two-thirds majority in Parliament, but by the Commission for the Administration of Justice; and that it should be possible for disciplinary decisions by the Commission for the Administration of Justice to be subject to an appeal before a court.
The Commission also recommends that an Office of the Director of Public Prosecutions should be set up, which shall assume some of the functions currently performed by the Attorney General and the Police, as well as the functions of the Magisterial Inquiry.
Further recommendations are: that the Attorney General should remain the Government’s Legal Adviser; that the Police Force should remain responsible for investigative work.
On the effect of decisions by the Constitutional Court the Commission’s opinion is that when a decision by the Constitutional Court holds that a law runs contrary to the Constitution, that decision should be able to revoke that particular law.
The Commission also opines that Members of Parliament should serve on a full-time basis and should be given more resources and that the rules on the appointment and removal from office of the Ombudsman should be raised to Constitutional level.
Another recommendation is on the Executive, that the President should have more powers and be elected and removed by a qualified majority.
The report also says that:
Certain decisions for which the Prime Minister is responsible - particularly with regards to appointments to independent commissions - should become the responsibility of the Cabinet, while a number of powers should be more spread out.
Permanent secretaries should be chosen on the basis of merit, by the Public Service Commission.
That appointments to Positions of Trust should be regulated by the Constitution in such a manner as to have a clear legal basis, with clear parameters.
And on the Police: The Commissioner of Police should be appointed after a public call, with the Prime Minister having the right to veto.
The above are in brief, the main recommendations of the Venice Commission.
I join the Prime Minister Dr Joseph Muscat and officially thank the Venice Commission for the work it has undertaken.
As I said at the beginning, it should be noted that since 2013, this Government has implemented a series of robust reforms, and several recommendations made by various stakeholders have been implemented gradually. Sufficed to say that less than five years ago, a number of important laws came in force, among them:
Party Financing Laws; a comprehensive and holistic Whistleblowers’ Act; a law abolishing time-barring on offences related to corruption by politicians; a law which strengthened judicial independence by reforming the manner in which judicial appointments and discipline take place; a law which subjects high-level appointments such as Chairpersons of principal regulatory authorities, and non-career Ambassadors and High Commissioners, to parliamentary scrutiny; a law lessening the powers of the Attorney General in drug and other cases; and laws which introduced the right to a lawyer during arrest, the right of disclosure, and other reforms brought into force which improved this sector.
The opinion of the Venice Commission is a valuable contribution to the process of legal and constitutional reform in our country. Furthermore, it builds on what this Government has been working towards, after many years without change.
The Government is in general agreement with the bulk of the Venice Commission’s proposals, and it intends to implement them in the main.
The majority of the proposed reforms touch upon articles of the Constitution which require the approval of two thirds of the House of Representatives to be amended. Some of them also require laborious parliamentary and administrative processes.
Furthermore, the Commission itself also proposed that the recommendations should be adopted following an appropriate examination, and subject to adequate transitory measures, so that the independence of existing officials is not prejudiced.
In this regard, the Government is looking towards a process whereby the proposals are implemented and, where necessary, with transitionary measures, with the ultimate aim being effective reform for the strengthening of rule of law.
In this context, the work of the Steering Committee for a Constitutional Convention presided by the President of the Republic could not have commenced at a more opportune time.
This Government is a reformist Government, and thus it considers the opinion of the Venice Commission as an important point of reference for the strengthening of the rule of law in our country.
This being that last article before Christmas Day, may I wish all readers of The Malta Independent a Blessed and Happy Christmas.