Constitutional reforms rushed through behind the Venice Commission’s back

Parliament last Wednesday evening unanimously rushed through Constitutional reforms in a stitch-up between the political parties before the Venice Commission had a chance to assess the legal texts, The Shift can reveal.

As the legal changes were being debated and voted into law in the Maltese parliament, over in Strasbourg the constitutional experts of the Council of Europe’s Venice Commission were preparing to assess the same Bills on a request of the Maltese Justice Minister Edward Zammit Lewis.

Contacted by The Shift, a spokesperson for the Venice Commission seemed surprised at the impending passage of the Bills through the Maltese parliament.

“All I know,” he said, “is that the Venice Commission plans to adopt a new opinion on Malta during its 8-9 October session. That new opinion should cover all the elements that were first tackled in the earlier opinion.”

By ‘earlier opinion’, the spokesperson was talking about the Opinion of 19 June 2020, in which the Maltese government had engaged with the Commission on the broad design of the reform.

The Venice Commission at the time had similarly made a broad assessment, and wrote that “as with any preliminary proposal or concept paper, a full assessment can only be made when concrete texts are available.”

The government then drew up the legal texts and sent them to the Commission for its assessment.

In a tweet about Bills rushed through parliament, Council of Europe Special Rapporteur Pieter Omtzigt wrote: “I welcome progress by the Maltese government this week to decrease the Prime Minister’s excessive powers and increase accountability. But I do not understand why the government sent the texts to Venice Commission then did not wait for its opinion.”

The haste in getting the Bills into laws before the summer recess became apparent about two weeks ago. This culminated last Sunday when Prime Minister Robert Abela told a Labour Party general conference that there has been a “process” involving dialogue “with the Venice Commission and at the end of this process the Commission approved these changes [reforms or Bills].”

Abela had also been making much of a letter by EU Commission President Ursula von der Leyen saying that it signifies endorsement of Malta’s reforms. In the letter, von der Leyen urged Abela “to remain engaged in dialogue with the Venice Commission, fully implementing its recommendations.”

This point was reiterated by a spokesperson on justice at the EU Commission days prior to the vote, who told The Shift: “We expect the Maltese authorities to implement in full the recommendations of the Venice Commission and to follow up on the findings.”

Yet six of the 10 Bills have now been voted upon in parliament before the Venice Commission has had a chance to make its recommendations on the same Bills.

The final agreed legal texts were not published or revealed prior to the vote in parliament. They will only be published once signed into law by the President in the next few days.

After the parliamentary votes, the Justice Ministry issued a press release on the “historic constitutional and institutional reform” which the President’s office praised cooperation between the parties as a “democratic means” of working together in the national interest.

NGO Repubblika, which has run a campaign for constitutional reform and challenged judicial appointment in a constitutional lawsuit that is currently before the European Court of Justice, said in a statement that it would reserve judgment on reforms once the laws are published.

Contacted by The Shift, the NGO expressed disappointment that despite “all the promises and their big talk about the importance of civil society in a revived democracy, the political parties in parliament negotiated a deal without regard to the views of the wider community”.

“Our institutions have lied to the country,” a written comment on behalf of its committee said.

“They promised that constitutional changes would be made by the people for the people to ensure we get out of the mess we’re in: impunity, corruption and a violent threat to free speech. But their secrecy suggests they only intend to perpetuate the status quo. As they’ve always done.”

Omtzigt also said he was concerned that “the overall reform process still seems erratic, uncoordinated, non-transparent and piecemeal, with no meaningful public consultation”, as recommended by both the Parliamentary Assembly of the Council of Europe and the Venice Commission.

I remain concerned that the overall reform process still seems erratic, uncoordinated, non-transparent & piecemeal, with no meaningful public consultation, as requested by both @PACE_News and @VeniceComm (2)

— Pieter Omtzigt (@PieterOmtzigt) July 31, 2020

Sources in parliament told The Shift that the main theme of the two-party deal as-voted amended the methodology of appointment of the President, Chief Justice, Ombudsman, and chairperson of the Permanent Commission for the Administration of Justice.

All these key State actors are set to be appointed by two-thirds parliamentary majority, but if two-thirds majority is not garnered, then the incumbent would have to stay put until the parties agree on – and vote in – a replacement.

These rules are seen as providing an incentive for the political parties to coalesce around a candidate.

The Justice Minister had floated this possibility with the Venice Commission last May in discussions over the Chief Justice, and the Commission expressed concern about what would happen if the incumbent had to leave due to sickness.

In such circumstances, the Constitution specifies that the President appoints a replacement from among senior judges in accordance with the “advice” – in practice the choice – of the Prime Minister.

Two other laws voted in that regulate the appointment and removal of members of the judiciary appear questionable. There is a lack of clarity on whether candidates for the judiciary would be assessed – and appointed – for specific vacancies in specific judicial offices or generally.

On removal or impeachment, this may be unworkable for as long as the composition of the Commission for the Administration of Justice is not changed. At present, members of the Commission include the Attorney General as well as three other lawyers among its 10 members.

In a landmark case in 2013, the European Court of Human Rights raised issues of ‘objective impartiality’ over a prosecutor general – Attorney General in our case – who sits on a body concerned with the removal of judges. The same issues apply to the other three lawyers who presently sit on the Commission, according to legal sources.

The presence of the Chief Justice, who is deputy chair of the Commission, may also be problematic if he would have initiated the proceedings against the member of the judiciary in the first place as stipulated in the Constitution.

It is not known whether the Venice Commission will press ahead with formulating its Opinion now that six out of the 10 Bills it has been assessing have been amended and become law.