The question we keep hearing is how well does rule of law in Malta function? Well, apparently, not enough.
The Venice Commission, an advisory body of the Council of Europe, has just finalised an investigation into Malta. After having spoken to the Prime Minister, the President, and a whole plethora of other actors, which includes the Ombudsman and the Dean of the Faculty of Law, they’ve adopted an opinion which will be published in full next week.
They’ve basically concluded that the Prime Minister’s executive power overshadows that of all the other branches of the state. To combat this, they’ve come out with a number of recommendations.
So, what are the Commission’s recommendations? Here are some of the report’s most salient points.
Stronger Parliamentary powers
Firstly, Parliament needs to increase its powers. The Commission has suggested that this could be achieved by increasing the salaries of the MPs.
The Commission commented that current salaries “negatively affects their [the MP’s] ability to operate independently from the executive,” in a statement made on Friday.
Nobody likes to hear that MPs should earn more. But in Malta’s case, Parliament is in open session for only three times a week during the late afternoons and evenings following a day of work. Besides, several ruling party MPs also hold well-paying jobs with the government, which could very easily disincentive them from employing the proper checks and balances against the executive.
In fact, the Venice Commission said Parliament should also be strengthened by tightening rules on conflicts of incompatibility when it comes to appointing MPs to officially appointed bodies.
Split the Attorney General’s role
The Commission suggests there should be a Director of Public Prosecutions (DPP). The purpose behind this new role would be to take over some of the prosecuting powers of the current Attorney General.
The issue with the Attorney General is its dual role; it acts as both an advisor to the government and a prosecutor. This means that there is a blatant conflict of interest if the AG ever needs to prosecute the government, which is of course problematic.
Our current constitution stipulates that, for the most part, the office of the President acts with the advice from the Office of the Prime Minister. But the Venice Commission suggests that this should be changed.
In their report they mention that “from the viewpoint of Constitutional checks and balances, it would be preferable for the President to be more remote from the majority of the day. The President can be an important check on the wide powers of the executive.”
Reduce the appointing power of the Prime Minister
Currently, the government appoints 700 people with positions of trust “notably as concerns independent commissions and permanent secretaries.”
Therefore, the Commission suggests that these positions should be strictly limited to ensure the efficiency and accuracy of the work of the civil service.
Reforming the judicial branch
The Commission noted that the judiciary needs to be reformed in nearly all aspects, as it is especially weak when it comes to judicial appointment and criminal persecution.
They suggest that judicial vacancies should be publicly announced and an enlarged Judicial Appointments Committee should vet and rank applicants. The committee should also propose candidates directly to the Maltese President.
Their statement also mentions that dismissals of judges and magistrates should not be made by Parliament. They call for constitutional reform for Parliament to not be able to intervene in judgements made when a legal provision is found unconstitutional.
Why should we care about these recommendations?
Every liberal democratic state such as ours is made up of three branches of government; the executive (the Prime Minister’s Office), the legislative (Parliament), and the judiciary (the Courts).
In order for the rule of law followed, these three branches need to be constantly checking each other. This is what is meant by checks and balances; that the institutions of each branch of government shares equal power and employs the same procedures to monitor the power of other institutions.
But in Malta it seems that too much power is being held within the authority of the Prime Minister. The President, the Cabinet of Ministers, Parliament, the Judiciary and the Ombudsman are all too constitutionally weak and unable to effectively implement sufficient checks and balances.