Council of Europe warns Maltese government to stop delaying reforms for justice and rule of law

The government does not intend to address loopholes that render key parts of rule of law legislation passed through parliament last summer impotent, according to a report published on Tuesday by the Council of Europe’s Special Rapporteur Pieter Omtzigt.

Omtzigt’s final report into Malta’s rule of law reforms concluded that the government’s reform programme and justice for assassinated journalist Daphne Caruana Galizia remain “unsatisfactory” overall.

The reform package of six laws rushed through parliament last summer is described as being “substantively incomplete in important respects.”

The government had rushed the legislation through before the Venice Commission had a chance to deliver its opinion in a scramble to beat the deadline of submissions to Moneyval, the body that is due to consider ‘greylisting’ Malta, which would be a blow to the country’s financial services industry.

In its submissions to Moneyval, the government made much of the reforms, and the fact that they had passed through parliament unanimously.

Yet a few days after the deadline for submissions, the Venice Commission, which is also a Council of Europe body, highlighted systematic loopholes in the much-vaunted laws and called on the government to carry out amendments.

Since the publication of the Venice Commission’s analysis, repeated emails that The Shift sent to the Justice Minister on whether amendments would be carried out remained unanswered.

Omtzigt has now reported that the Justice Minister Edward Zammit Lewis told him that any amendments would have to be considered by the so-called constitutional convention, a process led by the President for constitutional reform that has been opaque and torpid.

“I do not consider the ‘Constitutional Convention’ – which will be led by the President and may merely make recommendations to the government, and whose composition, working methods and timeframe are uncertain – to be an appropriate means of addressing urgent problems with the reforms,” Omtzigt said.

He added that he agreed with the Venice Commission that “revisions needed to the six enacted laws, ‘which have the character of corrections or adjustments … [should be dealt with] without delay, rather than being left to the future Constitutional Convention’”.

Among the loopholes are those related to new provisions enabling the Ombudsman and Auditor General to send cases that they investigate to the Attorney General for prosecution or further investigation.

The problem with the law is that it specifies that these could refer cases to the Attorney General if they find “evidence” of corruption, a bar that is unrealistically high given that these officials do not have the powers of the police – and their requests for information and documents are regularly ignored by government officials and entities. The Venice Commission asked for the bar to be lowered to cases “connected with or conducive to” corrupt practices.

Another deals with the court challenge of the Attorney General’s discretion on whether to mount or withhold prosecution. The ability to challenge the decision in court is an innovative measure in the law passed last summer, but it has two loopholes: The court cannot order the Attorney General to prosecute if it finds its decision unjustified, and there is no set time limit that would make court challenge possible (this means the Attorney General can leave a file on the shelf, undecided, and no challenge would be possible because there would have been no “decision” to challenge in the first place).

Yet another is the criteria for the assessment of candidates for the judiciary and transparency of the process. The law passed last summer holds that the President would publish the names of the three shortlisted candidates after one of them would have been appointed; the Venice Commission said that their names have to be published before – not after – one of them is appointed.

In his report, Omtzigt highlighted other reforms stalled, including the plan to transfer responsibility for criminal prosecution from the police to the Attorney General, as well as parliamentary reform to make MPs more independent of the government. At present, virtually all MPs of the Labour Party have paid engagements with the government on top of their employment by parliament.

Omtzigt wrote: “The Maltese authorities have failed even to mention parliamentary reform in their exchanges with either the Venice Commission or myself, despite the fact that the Venice Commission reiterated its recommendations in its June 2020 opinion and I drew attention to them in my request for information.”

More criticism centred on the procedure for appointing the Attorney General through ad hoc selection committee that leaves the final discretion in the hands of the prime minister. This criticism is apt in view of the scepticism that has greeted the appointment of Victoria Buttigieg as Attorney General last September.

On other things, Omtzigt wrote that justice for Daphne Caruana Galizia remains “fundamentally unsatisfactory”. He reported that “the criminal proceedings are extremely complicated and lengthy, without this resulting in clarity and certainty – on the contrary, there is great confusion”.

“The public inquiry [into the murder of Caruana Galizia] has been incredibly illuminating, but its independence has been attacked,” the rapporteur wrote, referring to the prime minister’s repeated attacks on the inquiry and the retired judges presiding over it, “and it will lead only to recommendations, not to verdicts”.

On impunity for high-level corruption, the rapporteur wrote: “Despite new laws, new officials and even a few arrests, no-one has been prosecuted – it is as simple as that”.

The scathing report is set to complicate the government’s positive spin on reform as Malta faces the prospect of greylisting by Moneyval this spring, especially given the loopholes that riddle the six pieces of legislation passed hastily last summer – and the government’s unwillingness to tweak the laws to close the loopholes.

The government’s intransigence or bad faith is also evident in the current bill working its way through parliament set to curb the ‘persons of trust’ appointments that have mushroomed to reportedly 700 employees in the public sector in the past years.

The Bill before parliament limits persons of trust to personnel who work in the secretariat of Ministers and Parliamentary Secretaries as well as positions in public sector vacancies that remain unfilled following repeated calls for applications. As for the number of persons of trust, the Bill specifies that this would be set by the Cabinet office.

These measures ignore the Venice Commission’s recommendations, made last October, to include positions of trust – personnel reassigned from within the public service – in the overall tally permitted in law, as well as to have more specific limits on numbers set in the law itself.

After the Venice Commission report, the government told the Commission, as it told Omtzigt, that it is “committed to introducing amendments to pending Bills.”

Yet the Bill in parliament, which passed its second reading on 17 November, remains unchanged.