The document published on 13 May 2020 purports to provide details on how the recommendations of the Commission in its opinion 940/2018 are to be implemented. It is significant to note that this is the first substantive reaction from the government to an opinion it was served with 18 months ago.
The document does not cover all the considerations made in the Commission’s opinion. It ignores several substantive points without explanation. In some cases, this may be attributed to a difference in priorities that the government may have. But in others, the government takes up one of the Commission’s recommendations while leaving out another recommendation that was clearly intended to complement it. In this way, the government’s proposals create new imbalances.
The government does not acknowledge the central motivation of the Commission’s opinion which is to examine “structural, constitutional and legislative issues with a view to assisting Malta in improving checks and balances and the independence of the judiciary”. As the Commission states, the request made to it by PACE originated against the backdrop of the ineffectiveness of the investigation to find any persons who ordered the assassination of Daphne Caruana Galizia and the culture of impunity in Malta.
Indeed, the preamble of the Commission’s opinion identifies the fight against corruption as an underlying motivation for the changes proposed. “11. Preventive and repressive measures are required to fight corruption.” The recommendations kept this consideration front and centre. The government has deliberately made no reference whatsoever to the fight against corruption in its response. This is reflected in what it has proposed for the supposed “implementation of your recommendations”.
The government’s proposal document lacks detail. We would have expected far more work to have been done in 18 months. In this period, changes to the Attorney General’s office and to the Police have been made which were ostensibly predicated on recommendations by the Commission, but in all these instances the underlying objective of the recommendation was comprehensively undermined. The government has not made the public aware before publishing this letter that it was actually working on any other recommendations made by the Commission, other than in respect of the method of nominating judges. We are particularly concerned that the government’s response appears to suggest the government has reached definitive conclusions about constitutional reforms before the commencement of the much-vaunted constitutional convention that has been promised since 2013 but has never actually taken off.
Although there are several points in the government’s response that appear to commit the government to implementing the recommendations made by the Commission, we will need to reserve judgement until we actually see legal drafts that will give us a clear picture of what exactly the government intends to ask Parliament to legislate on. Much of the government’s response remains at a superficial level, and on several points the government professes agreement with the Commission. However, the government’s actions and policies since December 2018 have been in contradiction with the principles identified by the Commission. We therefore remain sceptical that the intent of the government is the same as the intent of the Commission. Everything to date suggests the contrary.
The government is clearly keen on seeking an imprimatur or blessing from the Commission before publishing its draft legislation. We would caution the Commission against allowing itself to be dragged down to political strategies intended to justify ineffective legislation that changes nothing in practice, under the cover and pretext of the ‘endorsement’ of the Commission.
Whilst appreciating the Commission’s remark in its recommendations that the changes it suggests “146. … would not abandon Malta’s legal traditions”, we are unimpressed by the prominence the government has given to this consideration in the very beginning of its response. We find the reliance on “tradition” as a shallow excuse. Indeed, the government appears entirely reluctant to be dragged by the remainder of the point the Commission makes in paragraph 146, and that is, to achieve “an evolution that would provide more effective checks and balances than those in place today”. The tweaking of this or that legal provision will not begin to address the central problem identified correctly by the Commission: Malta’s Prime Minister is too powerful. There will be no meaningful change unless Malta builds adequate institutions with the right strength, unhindered independence and effective authority to hold the Prime Minister to account and limit the sort of excesses we have experienced in the last 7 years. Our constitution, drawn up before independence in 1964, was designed in a different context to the one we live in today. It was conceived by, for and in a society which is very different to the one on which it was grafted. This dissonance has been widened by the passage of time. Memory of the tradition in which it was designed has now faded. In the present context, the constitution can no longer satisfactorily achieve the originally intended aims. The Westminster tradition is a precious legacy. But former colonies have outgrown the colonial condition from which they had emerged. We therefore do not support the excuse that fear of departure from the Westminster tradition, as it was understood inside Britain’s colonial office in the years leading to 1964, can justify refusal to meet democratic standards as they are understood by the Council of Europe in 2020.
Finally, we recall your recommendation in “148… the Venice Commission insists that it is an international obligation of the Government to ensure that the media and civil society can play an active role in public affairs holding the authorities accountable.” We remain disappointed by the government’s unwillingness to engage in a proper debate on the detail of these important reforms. Up to this very moment, there has been no substantive discussion either in Parliament or in the general community on these matters that are so fundamental to our democratic life. We also point out that the government continues to defend, in the Maltese courts and at the Court of Justice of the European Union, its decision to ignore the Commission when changing 13% of the judiciary in April 2019, without regard to the reservations the Commission expressed and the recommendations it made. In the Courts, the government has consistently argued that it does not consider the views of the Commission as in any way binding on its policy-making. We say this because up to this point the government has given no signal in Court that it has changed its views on this matter.