In part the system is designed to do this. The courts are given the constitutional power and responsibility to review decisions and actions of the executive branch. But it is for the executive branch to give resources to the judiciary and through its grip on parliament, it is also the government that establishes the rules within which the courts must work. That’s how the government ensures that the powers the court have over it are hollowed out.
I want to give you some background to the case. Briefly though, because I think the case now is less about its original substance and more about the rotten state of the process.
The substance: the law about appointing an oversight board at the financial intelligence agency splits responsibility between interested agencies. The police chief nominates three people from among whom the finance minister chooses one. That’s supposed to make sure that neither official gets to choose alone. At one point the police representative was Silvio Valletta who turned out to be a buddy of Yorgen Fenech, suspected of several financial crimes.
Repubblika asked to see the paperwork between the police chief and the finance minister to determine who took the decision to handpick Silvio Valletta. It matters because at the time the police chief was Peter Paul Zammit, a Joseph Muscat lackey, followed by Lawrence Cutajar, himself suspected of revealing secrets connected to a murder investigation to a suspected accomplice of Yorgen Fenech, and the finance minister was Edward Scicluna, himself the subject of a criminal investigation into corruption related to the privatisation of hospitals.
The effort to acquire the paperwork has been going on for the better part of 2 years now. The information is crucial to allow Repubblika to do its job of scrutinising government activity and in principle, unless there are very specific reasons, every document of government activity, especially a document that implements legal requirements on the government, rightly belongs to the public.
The case has gone up several levels and is now sitting in front of an appeals tribunal, one of several such part-time “specialist” courts that exist only to review cases concerning very specific administrative laws.
Robert Aquilina complained in court yesterday about how long the case was taking. Cases take long, that happens to everyone. But Robert Aquilina was making the point that the delay was partly caused by the fact that the lawyer presiding the tribunal, Noel Camilleri, resigned after the last election and the whole process stopped for a while until he was reappointed to the post. Incidentally, Robert Aquilina was warned before the last election that Noel Camilleri planned to resign when he suspended proceedings to wait for the government’s decision. At the time Robert Aquilina expressly asked the chairman of the tribunal hearing his case to please not quit mid-stream.
This is where it gets tricky. Repubblika is battling the government in front of this tribunal president. And yet the president deferred to the same government halfway through the case handing in his resignation at election time and waiting at home twiddling his thumbs in the hope, not in vain as it turned out, of being rewarded with reappointment. The tribunal chairman is not above the two parties, he works for one of the parties and depends on them.
We can discuss elsewhere the problem of court delays but here we have another, perhaps deeper problem. A court or a tribunal where the respondent is the government is only useful to anyone if that court or tribunal is independent of the government.
One way to ensure courts are independent of government is to give judges and magistrates security that whatever they decide they’ll get their salary at the end of the month, their pension is secure, and they can’t be fired by the government alone. That gives them the freedom to take decisions the government does not like.
Then we get lesser courts, called specialist tribunals, were the persons taking the decisions do not enjoy such security even though they take decisions on reviews of some very serious and consequential decisions taken by the government. There’s the Refugee Appeals Board, the Planning Review Tribunal, the Consumer Claims Tribunal, the Competition and Consumer Appeals Tribunal, the Industrial Tribunal, the Mental Health Review Tribunal, the Patent Tribunal, the Police Licences Appeals Tribunal, the Panels of Administrative Review Tribunals, the Prison Appeals Tribunal, and the Information and Data Protection Appeals Tribunal where Repubblika is fighting this battle over the paperwork behind Silvio Valletta’s appointment.
These tribunals exist precisely for the purpose of giving people the right to have someone outside government review and hopefully reverse a decision taken by the government. But these tribunals are not outside the government. They’re firmly within it.
This is not a new problem. This bit may be relatively boring, but I want to highlight just how long it’s been on the agenda.
In 2018, the Venice Commission highlighted the issue when it was reviewing Malta’s judicial and constitutional set-up after Daphne Caruana Galizia was killed. The argument then, as now, is that Malta’s institutions are weak, and this allowed criminals in government to capture the institutions that should keep it in check.
The Venice Commission in 2018 declared “these tribunals do not enjoy the same level of judicial independence as that of the ordinary judiciary.” They pointed out to the government that the issue had already come up when they were asked to comment about setting up a Human Rights and Equality Board. At the time they said that this Board “may raise serious questions from the constitutional perspective.” That had been a yellow flag because the Board was only an idea. But the other tribunals exist and are deciding the fates of people battling government in a fixed game.
In 2018 the Venice Commission offered to help the government “to examine these matters if requested to do so.” The government did not request it to do so.
Then in 2020 the Venice Commission was reviewing the legal changes the government proposed as a sop to the substantial recommendations the Commission made in 2018. The Commission noted the government completely left out the problem of the lack of independence of specialist tribunals. “The Commission maintains its offer to examine these questions in co-operation with the Government,” the 2020 report said. The government ignored them again.
Later that year in a separate report commenting on the laws that were passed at the time the Venice Commission again complained the problem of specialist tribunals remained unaddressed. “The Venice Commission reminds the Maltese authorities of previous recommendations that have not yet been taken up,” listing “the recommendations in respect of specialised tribunals to provide for access to court,” among others.
That access to court question is important. When the government attempted to defend specialist tribunals, they lied, and they said a half-truth. The lie was that people they appoint to preside tribunals enjoy security of tenure during a fixed term. They don’t, as Noel Camilleri’s resignation around the election shows. The half-truth was that people can still go to court after a decision taken by a specialist tribunal. But that’s only to appeal on a point of law. The pro-government bias on decisions in substance, if compliant with the letter of the law, cannot be contested.
And in any case if it has taken 2 years and we’re nowhere near a decision on this Silvio Valletta paperwork case, can you imagine the energy (and money) you need to start an appeal, what, three years after the paperwork you want has already become redundant?
The issue came up again last year when the government tried to get the Venice Commission to back its idea of “reinterpreting” the Constitution to allow the FIAU to hand down massive fines without the safeguards of an independent court. The Venice Commission rubbished the notion, of course. In the process they stressed again that “giving the power to impose heavy sanctions which could qualify as criminal to a regulatory authority is conditioned on the latter’s guarantees of independence and impartiality.” In other words, the Commission told the government it cannot empower its own employees, whom it can hire and fire at will, to behave as if they were independent courts. Because they aren’t.
The problem of specialist tribunals was also raised by the European Commission in its first rule of law report on Malta in 2021. The Commission also reported the concerns of the Chamber of Advocates who complained about the method of appointment of members of the tribunals, which is on the lines of what line minister chooses to care about.
In the recently published update to the Commission’s Rule of Law report on Malta we were told there’s been progress. The government has promised a review of the system, but they have again ignored the Venice Commission’s repeated offers for support. The government is hiring local consultants instead.
“This review will include a study, to be completed by end 2024, as well as legislative amendments to enter into force by 31 March 2026.” They win four years like that by when the issue will, they hope, be forgotten.
By keeping the review process inside Malta, and avoiding the input of the Venice Commission, they are making sure they come up with changes that have no material consequence. They just want to be allowed to govern without the effective scrutiny of properly independent administrative courts.
Bringing this to the public’s attention is why Repubblika exists. That’s why Robert Aquilina took time out to make a point in court yesterday. He got the president of the tribunal to record the fact that he offered the government his resignation at the election, to record the fact that this is normal practice for board chairpersons, and to record the fact that the complainant here felt that they weren’t being judged by someone independent.
If the government continues, as it has, to drag its feet on the issue, we may need to open a new front to battle this out, to try to push the government into space where it is uncomfortable and it would just rather not go. A space where they can no longer deny justice. Not all the time anyway.