Malta starting receiving significant numbers of refugees in the mid-90’s. However, it was not until 2001 and 2002 that large numbers started arriving by boat from North Africa, Libya in particular. Most of those arriving in Malta through this route were from Sub-Saharan Africa, however in recent years Syrians and Libyans make up the largest groups in terms of arrivals.
In this two part series, we will be looking at Venice Commission Opinion CDL-AD(2020)019 adopted in October 2020 on the acts and bills that sought to implement the proposals for legislative changes which were the subject of Opinion CDL-AD(2020)006 adopted in June 2020.
In Part I, we examine the Venice Commission’s reaction to the procedure used by the Government in adopting the first 6 Acts which are subject of the Opinion. In the Part II, a look will be had at the substantive comments on the 6 adopted acts and finally, Part III will review the remaining 4 pending bills.
The request to the Venice Commission from the PACE originated in a proposal by the Rapporteur of the report on “Daphne Caruana Galizia’s assassination and the rule of law, in Malta and beyond: ensuring that the whole truth emerges”. The Venice Commission had noted then that the request for should be understood against this backdrop, although its remit is exclusively limited to the examination of Malta’s constitutional amendments.
Reaction: A hidden & rushed parliamentary process
Interestingly, it can be noted that the Government transmitted the 10 bills to the Venice Commission as restricted documents which could not be circulated to the public without prior authorisation. The Minister requested an opinion by way of urgency, to which the Venice Commission replied by stating that it would not prepare an opinion by way of urgency but that it would be finalised at the beginning of October 2020.
The Venice Commission also recalled that it had insisted that the Maltese authorities should have a meaningful exchange with all stakeholders on the basis of texts that should be public. It strongly called:
“… for wide consultations and a structured dialogue with civil society, parliamentary parties, academia, the media and other institutions, in order to open a free and unhampered debate of the current and future reforms, including for constitutional revision, to make them holistic.The process of the reforms should be transparent and open to public scrutiny not least through the media.” – paragraph 99 Opinion CDL-AD(2020)006.
The lack of publicity of the texts up until the last minute meant that bills, that will have profound and long-term impact on Maltese society, were not scruntised by civil society, parliamentary parties, academia, the media and other institutions. This was done against the repeated recommendations of the Venice Commission that called for wide consultations with society as a whole.
Cutting short any meaningful dialogue
In spite of this, on the 29th July 2020, the Maltese Parliament went ahead and approved 6 out of the 10 Bills it had previously presented to the Venice Commission. In reaction to this, the Opinion noted with regret that the Bills were adopted before the Opinion could be finalised and without any structured dialogue with all stakeholders as recommended.
The Venice Commission stressed that it was “critical of the procedure followed by the Maltese Government, which it regrets” and that the rushed and opaque procedures essentially cut short any meaning dialogue with Maltese society. It noted that the 6 wide-ranging bills were rushed through Parliament in just 29 days between the first reading and adoption. Furthermore, it noted that 4 bills were made public after 16 days from their presentation at first reading in Parliament.
Unanimity in the Maltese Parliament is an ambivalent matter
In scathing words, the Venice Commission noted that confining discourse to the political parties in parliament, without meaningful public consultation, was akin to denying citizens their democratic entitlement to have a say in the shaping of the constitutional order of Malta. The text of the Opinion goes so far as to say that although unanimity may be seen as a sign of broad consensus, it could also be interpreted as:
“proving the closedness of the political system and the fact that common vested interests bind the majority and the opposition together.” paragraph 16 – Opinion CDL-AD(2020)019
Finally, the Venice Commission repeatedly states that the procedures adopted by the Maltese authorities in carrying out these reforms go against the literal and overall thrust of their previous opinions.
In Part II of this series, which will be published next week, will look at the substantive comments to 6 acts adopted by Parliament relating to:
Reforms relating to the judicial review of decisions not to prosecute;
Amendments to laws regulating the Office of the Ombudsman;
Constitutional amendments relating to the appointment of the judiciary;
Constitutional amendments relating to the appointment of the President;
Constitutional and other amendments relating to the removal from office of the judiciary; and
Reforms relating to the appointments to the Permanent Commission Against Corruption.
In May 2020, aditus had the opportunity to discuss its views on the proposed changes, together with other local civil society actors, with the rapporteurs of the Venice Commission. This was followed by a publication of its feedbackon Malta’s proposed legislative changes. We had already then noted our frustration at the lack of broad civil society involvement in the formulating any of the intended changes put forward by the Government.
As a party to the Covenant, Malta is obliged to submit regular reports, usually every 4 years to the Committee on how the rights are being implemented. The Committee examines each report and addresses its concerns and recommendations in the form of concluding observations.
The Human Rights Committee considers that the cooperation of NGOs and civil society working on the promotion and protection of human rights is essential for the promotion and implementation of the Covenant. Therefore, we work on submitting our input in a comprehensive report that covers the main issues that concern the Covenant and its implementation in Malta over the past 4 years. aditus is not the only NGO that has submitted its input this year and the other reports can be accessedhere.
Our report covers the following issues and concludes with recommendations:
National Human Rights Institution
Participation Of Women In Political And Public Life
This week aditus foundation, Jesuit Refugee Service Malta and Integra foundationfiled three complaints in three different fora with respect to the situation of around 167 migrants currently being held aboard the private vessels Europa II and the Atlantis, just outside Malta’s territorial waters. The Maltese government chartered a number of private pleasure craft vessels to accommodate migrants rescued in Malta’s SAR zone in the period between the 28th and 29th April 2020 and 6th May 2020. The migrants were transferred from private and AFM vessels involved in the rescue to the chartered vessels and have remained there since the beginning of May.
aditus foundation has presented its feedback on Malta’s Proposed Legislative Changesto the European Commission for Democracy through Law (Venice Commission) further to its Report on Maltapublished in 2018. aditus also had the opportunity to discuss its views on the proposed changes, together with other local civil society actors, with the rapporteurs of the Venice Commission.
As we have repeatedly underlined in all our advocacy efforts over the past years and in our communications with the Venice Commission and the European Parliament’s ad-hoc Delegation to Malta, our concerns are centred on a rights-based understanding of good governance, requiring a healthy and functioning rule of law to ensure the respect, protection and fulfillment of the fundamental rights of all persons living in Malta.
In our document we highlighted the importance of rolling out the much-needed reform, whilst also highlighting that any changes need to be part of a broader reform which takes into account the context of Malta’s political, media and civil society landscape that has shaped the reality that we live in today.