Venice Commission: lack of public consultation akin to denying citizens their democratic entitlement.

Part I – Reform Process

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.

Backdrop: Daphne Caruana Galizia’s assassination

On the 8th October 2020 the Venice Commission adopted an Opinion on the ten acts and bills implementing the legislative proposals put forward by the Maltese government. This is the 4th Opinion adopted by the Commission on Malta since 2018. The process relating to the Malta’s constitutional amendments, separation of powers and independence of the judiciary kicked off in October 2018 by a request of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe (PACE) to the Venice Commission.

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 feedback on 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.


Interviews about the repercussions of Covid-19 on refugees & migrants

#KeepingUpWithTheInterns

Last week I was going through the news and reading about the current COVID-19 pandemic. I came across a Times Of Malta article  ‘Migrants ‘more vulnerable’ to COVID-19 impact’. In this article the Director of Integra, Maria Pisani,

Imagine losing everything on your way to Europe and suddenly facing a new crisis in your new home: you’ve just lost your job, have no internet to stay updated about the novel corona-virus and no friends or family to support you with food or medicine. This is the situation in which some migrants have suddenly found themselves.

Dr. Maria Pisani, Integra Foundation

After reading this article I decided to sit down with our Legal Officer, Claire Delom, a French human rights lawyer with expertise in refugee law. I also spoke with Sarah Giusti, Social Worker at The Jesuit Refugee Service: “JRS in Malta seeks to accompany, serve and defend the rights of asylum seekers and forcibly displaced persons who arrive in Malta”

I interviewed them regarding the current situation affecting local migrants and refugees.

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No, normality has not been restored! – Times of Malta opinion piece

This is our Director’s opinion piece for Times of Malta, published on 13 February 2020.


Despite the radical developments in Malta over the past months, it cannot be said that normality has been restored. After weeks of taking to the streets, we at Aditus Foundation welcomed Joseph Muscat’s resignation and Prime Minister Robert Abela’s statements on governance reform.

Yet, it would be foolish to believe or act as if Malta’s institutional shortcomings have miraculously disappeared.

Our democracy is still extremely vulnerable and we are concerned that the gravest threats come from within.

Notwithstanding their shameful activities, Muscat and Konrad Mizzi remain members of Parliament. There, they are able to exercise authority and influence laws that govern every aspect of all our lives and that of our nation.

This is clearly unacceptable and no argument on their political right to those two seats will make us think otherwise.

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LIBE & PANA Mission Report, Rule of Law, Malta

The European Parliament’s Mission Report Following the ad-hoc Delegation to Malta (30 November – 1 December, 2017) was finally published yesterday. The Report outlines the findings of the visit of an ad-hoc Delegation to Malta composed of 8 European Parliamentarians drawn from the Committee on Civil Liberties, Justice and Home Affairs (LIBE) and the Committee of Inquiry into Money Laundering, Tax Avoidance and Tax Evasion (PANA). The Report contains a summary of the meetings that the Delegation held with various government representatives, public authorities and civil society, and it also presents a number of recommendations to be implemented at European level and at national level here in Malta.

During the meeting held with civil society representatives aditus reiterated that problems relating to the rule of law in Malta are systematic and stem from the concentration of powers granted to the Prime Minister by the Constitution. Neil, our Director, noted that these concerns existed prior to the election of the current government and to the assassination of Ms. Caruana Galizia. The current system permits the politicisation of national authorities, by allowing the appointment of party affiliates to judicial positions, to monitoring and deciding bodies and to key positions within the administration. Other issues raised during this particular meeting can be found on pages 12 and 13 of the Monitoring Report.

aditus had previously raised these concerns and had called on the Maltese government and Parliament to commit to a governance approach that is built on transparency, inclusivity and accountability. The crisis Malta is facing today can be seen as the direct result of successive governments retaining and strengthening the power-structures, obscuring the lines separating the legislative, executive and judicial branches of government. aditus had also called on civil society to avoid complacency and to expect more and better from any Government of the day and from Parliament, to require from them the most impeccable conduct and, where this fails, to insist on their immediate resignation or removal. However, primarily we recommended the implementation of a true Constitutional reform that will rebuild the nation from its grass roots, with strong and independent democratic institutions that are capable of effectively ensuring the rule of law and respect for fundamental human rights. [Full press releases: The nation deserves better, and more, from Government and Parliament – Joint NGO Press ReleaseJoint NGO letter to the Prime Minister on the recent appointment of Dr. Herrera as Justice Commissioner]. 

In a similar vein, the Platform of Human Rights Organisations in Malta (PHROM) in its 2016 Annual Human Rights Report Protecting Human Rights, Curbing the Rule of Power, flagged “issues of bad governance, lack of transparency and accountability as the most serious concern for the general state of human rights in Malta.” The 31 members of PHROM, which include aditus foundation, cited the Panama Papers scandal, the corruption allegations involving members of the Government and the then upcoming elections as the most worrying obstacles for the fulfilment of human rights in Malta. Finally, PHROM called on the Government to commit governance approach that puts people and the protection of their rights at the centre of their policies, rather than safeguarding the privileges of a few.

In concluding, the Delegation’s Monitoring Report noted that “MEPs expressed serious concerns about the unclear separation of powers, which has been the source for the perceived lack of independence of the judiciary and the police, the weak implementation of anti-money laundering legislation, the serious problems deriving from the ‘investments for citizenship programme’, and the mentions of Maltese politically exposed persons in the Panama Papers and their continuing presence in government.” In tackling the problems identified with the functioning of the rule of law, the Delegation recommended that: 

  • Work is needed to ensure stronger checks and balances in the Maltese legislative framework to better separate powers and to limit possible interference of the Prime Minister in the judiciary and the media;
  • Reform the Attorney General functions, to decouple the role of advisory to the government from the role of prosecution;
  • Reform the Judiciary, namely on the basis of recommendations made in 2013, in order to reinforce the separation of powers and the independence of the Judiciary;
  • The Police Commissioner should no longer be appointed by the Prime Minister but by an appropriate independent body. Similarly, the veto power of the Prime Minister should no longer exist regarding the nomination of the Maltese Chief Justice;
  • An investigation is needed over the alleged influence of elections through increased hirings in the public sector, issuance of construction permits and regularisations of irregular constructions, as well as pay increases and promotions in the military. 

(for the full list of recommendations refer to pages 29-31 of the Monitoring Report)

We call on the Government and Parliament for immediate action by taking these recommendations on board and by kick-starting the process of a proper reform that would ensure good governance, free from corruption and abuse of power and the  functioning of the rule of law, which would guarantee justice, personal security and the protection of fundamental rights for all.


Worlds apart on a tiny island – our Director’s Talking Point on The Times

Available here: http://www.timesofmalta.com/articles/view/20161102/opinion/worlds-apart-on-a-tiny-island.629741


Some weeks ago, Mina Tolu, a young Maltese trans activist, corrected actress-activist Emma Watson when the latter referred to the former as “she” instead of the preferred “they”. Also some weeks ago, Fathi Elhadi Eldeeb was treated for serious injuries following what he described as a beating by six bouncers that left him unconscious.

The distance between these two personal experiences is staggeringly vast, and should be yet another eye-opener on Malta’s understanding and exploitation of human rights.

Enter Mina, whose affirmation of their non-binary gender identity is representative of the giant leaps forward made in Malta in finally recognising the equal human dignity of lesbian, gay, trans and intersex persons.

Understandably confusing to many, pronoun choice is of course not a mere linguistic flair but a direct rejection of the very idea that all in nature is either male or female. In challenging such a deeply entrenched understanding of the world, it almost pokes fun at the national panic we witnessed at the crumbling of other, possibly far more constructed notions, such as marriage and the family.

The point is that in just a couple of years, Malta has come an extremely long way. Non-discrimination on grounds of sexual orientation, gender identity and gender expression is protected by our Constitution, and hate crime legislation includes the same grounds in its protection.

Civil unions extend to couples – whether heterosexual or homosexual – the full package of rights and obligations found in marriage, and changing one’s gender no longer requires forced sterilisation but may be effected with a mere notarial declaration.

Across the government, ministries are adopting technical policies that seek to ensure the implementation of these legal norms within their areas of responsibility such as schools, the health sector and prisons.

Pronoun choice is of course not a mere linguistic flair but a direct rejection of the very idea that all in nature is either male or female. Just earlier this week, Parliament started discussing Bills to depathologise LGBTIQ+ identities, thereby taking a proud stand against international criteria, and to criminalise conversion practices. Exit Mina.

Enter Fathi, whose story is the most distant point on the human rights spectrum to Mina’s. His is essentially an experience of isolation. Or rather, he suffers from the intentional and strategic social exclusion perpetuated on a daily basis at far too many political and social levels in Malta.

The point is that years have passed since Malta saw the first refugees arriving by boat, and there is still no political or national effort to truly engage with them.

Malta’s detention reform, coming after years of advocacy, international criticism and judicial condemnations, remains ineffective in practice. Although the reform removed the automatic detention of migrants and asylum seekers in an irregular situation, detention remains the first and only option for the police.

Despite the reform introducing extremely strict grounds for detaining asylum seekers, in line with Malta’s European Union obligations, they are being detained even where no grounds exist and when their detention proves to be unnecessary.

Refugees fleeing war and human rights violations – Iranians, Iraqis, Libyans, Syrians – are prosecuted and imprisoned because their only way of reaching safety is by using false passports.

It is worth remembering that these prosecutions and prison sentences are in flagrant breach of Malta’s international legal obligations.

Refugee integration is almost a national taboo. Apart from a vague document published by the Civil Liberties Ministry in 2015, Malta stubbornly refuses to talk about – let alone act on – pressing integration issues.

Public entities that deal with migrants and refugees remain desperately understaffed and under-resourced, some displaying attitudes that include dismissal, scorn or outright racism.

The country’s approach to refugees remains captured by the desolate units at Ħal Far, miserable homes to those refugees who were lucky or brave enough to flee their homes. Exit Fathi.

It is clear that no side of Parliament is keen on showing any form of political leadership in the area of migration, excluding of course that aspect of migration that results in the purchase of Maltese citizenship.

The kind of leadership displayed in relation to the LGBTIQ+ community is brave and transformative, insofar as it is adamant on bringing about cultural changes in support of fundamental human rights.

Yet it is also an opportunistic and selective leadership that is just as adamant on ignoring Fathi and all the other inconvenient minority groups in Malta.