Venice Commission ‘disappointed’ as it unpicks ‘rushed’ rule of law reform

The Venice Commission said in its latest Opinion last week that it “regrets” the procedure followed by the government to enact reforms as it unpicked 10 laws put to parliament last July.

Six of the 10 Bills put to parliament have already been made into law, promoted by the government as the success of its effort to implement the Venice Commission’s recommendations for rule of law reform.

Yet the Commission is saying the laws were enacted before the government had received its opinion. It is calling for the reopening of those laws for amendments to close loopholes that remain unaddressed.

“The Commission is critical of the procedure followed by the Maltese Government, which it regrets,” the Commission wrote, in reference to the rushed reform.

Reforms ‘rushed’ through parliament ‘disappointing’

The Venice Commission’s criticism of the government’s attitude took up three pages in a 20-page report, and it unmasked the government’s haste and fragmentary reform process.

The Council of Europe’s body of constitutional experts carries so much weight that its opinions are cited as a point of reference by international and European bodies, including European courts in passing judgments on specific cases.

The report reveals that Justice Minister Edward Zammit Lewis had written to the Commission requesting an opinion within seven days, and to keep the draft laws confidential.

The Commission refused to comply with either request, yet Zammit Lewis went ahead and put six of the 10 laws through parliament before the Commission had a chance to deliver its opinion.

The Commission said, “it recognises” the pressure “to rush through the reforms” – in reference to the imminent deadline of Moneyval (the anti-money laundering committee within the Council of Europe that may ‘greylist’ Malta).

Yet it also said, “the Commission cannot but regret that most of the Bills have been adopted before the requested opinion could be finalised”.

“Constitutional amendments,” the Opinion adds, “are meant to have a profound and long-term impact and hence require wide consultations within Maltese society. Thus, the rushed process through Parliament comes not only as a surprise but also a disappointment.”

It also stressed that “confining the discourse to political parties in parliament without meaningful public consultation is akin to denying citizens their democratic entitlement to have a say in the shaping of the constitutional order.”

The report poured scorn on Zammit Lewis’ defence that the laws were unanimously approved in parliament, saying that this is “an ambivalent matter [that] could be interpreted as proving the closedness of the political system and the fact that common vested interests bind the majority and the opposition together”.

Such stinging criticism of the lack of due process of the government and wider political class is damaging to Malta as it faces scrutiny by Moneyval and other international bodies – it reinforces the impression that the Maltese government acts in bad faith, and saps trust at a time when it’s most needed.

Stinging criticism demands more from government

Confidence in the government is further eroded by the Commission’s unpicking of all but two of the 10 legal texts.

For example, in the law empowering a challenge in court to the Attorney General’s discretionary decision not to prosecute criminal cases, the Commission found three loopholes that render the new legal provisions virtually impotent.

This is the same law that Zammit Lewis boasted was a sign of reform during a press conference at the Attorney General’s premises on 2 October.

In the first loophole, the Commission noted that the law sets no time terms on when failure to prosecute could become challengeable in court, which means that the Attorney General could simply leave a file on the shelf and undecided, and no one would be able to challenge it.

Moreover, a court that finds a decision not to prosecute unjustified can only send the case back to the Attorney General for review. The Commission has now called for new amendments that would empower the court to “order the Attorney General to prosecute” if it finds failure to prosecute unjustifiable.

It also asked for a change that empowers the Ombudsman, Auditor General and Commissioner for Standards to be able to challenge the Attorney General’s failure or delays to prosecute crimes, and not only the direct victims of the crime.

At the same time, the Commission questioned the high bar set for cases investigated by the Ombudsman or Auditor General to be referred to the Attorney General.

The law specifies that these would have to find “evidence” of corruption before sending cases to the Attorney General to prosecute. Yet the Commission asked for the bar to be lowered to cases “connected with or conducive to” corrupt practices.

In the analysis of another legal text, the Commission found that the Prime Minister retains influence on who gets appointed as Permanent Secretary – these are the highest civil servants who issue directives and guidelines to departments – because the Principal Permanent Secretary, appointed by the Cabinet “shall take instruction from the Prime Minister” when he makes recommendations on appointments of permanent secretaries to the Public Service Commission.

“The combination of these two facts,” the Commission writes, “entails the risk that the independence of the Public Service Commission is encroached.”

New laws ignore previous recommendations

The Commission also found faults with the Bill that seeks to limit persons of trust to close aides of Ministers. These persons of trust have surged to around 700 under Labour, and they have tended to serve as enablers in widespread public service corruption or cronyism.

“In order to avoid any impression of cronyism,” the Commission wrote, “each Minister should adhere to the ‘absolute minimum’ paradigm on the basis of what the Venice Commission highlighted in its June 2020 Opinion (it seems that there was a practice of four such positions in the past, including the driver/bodyguard).”

The Commission also highlighted another loophole: the law omits ‘positions of trust’, who are employees within the civil service who are engaged at the service of the Minister, or in positions decided by the Minister, in a discretionary manner.

It called for these to be included in the law: “They should be included in the overall count.”

It also called out the habit of government failing to engage with Ombudsman, which frustrates investigations by the Ombudsman. The Commission called for the Ombudsman’s right to access information to be enshrined in the Constitution and to change the law to enable any person or entity to make a complaint to the Ombudsman, not only those “having an interest”.

On the judiciary, which is the core part of the current stage of reform, the Venice Commission requested refinement of the selection criteria in assessing candidates on merit for specific specialisations.

It also requested an amendment in the law passed on 7 August so that the President would publish the names of the three candidates selected for judicial vacancies before, not after, one of them is chosen.

The Venice Commission also asked for another change in order to eliminate the potential of the Justice Minister taking over the running of the judiciary. At present, in the law passed last August, the Justice Minister would assume powers to instruct the President on the assignment of work to the judiciary and substitution of members of the judiciary in the event that the Chief Justice fails to do so.

This could potentially enable the Justice Minister to decide who sits in which court, a power that could enable much control over the judiciary if combined with the power of another provision in the Constitution – that only the Justice Minister or Chief Justice can make complaints against the judiciary.

The Venice Commission has called for changes so that these powers pass onto the Commission for the Administration of Justice, the highest justice organ, in the event that the Chief Justice fails to carry out these duties.

The Venice Commission again reminded the government, as it had done last June, of “previous recommendations that have not yet been taken up”.

In particular, it called for “ensuring that backbench MPs are made less dependent from government posts”. Virtually all Labour MPs are in the pay of government, making it hard for them to act independently of the Executive in parliament.