Opinion Archives - Page 3 of 3

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.

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 Release, Joint 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.

Malta & the EU Justice Scoreboard 2016

The EU Justice Scoreboard – 2016, released by the European Commission provides data on the quality, independence and efficiency of civil, commercial and administrative justice systems in all EU Member States. The scoreboard exists as a part of an open dialogue with Member States which aims to help achieve more effective justice systems. 2016 sees the release of the fourth edition of the EU Justice Scoreboard, which contains new quality indicators on factors such as general standards, training and legal aid.

Overall, Malta scores relatively low on indicators relating to efficiency due to lengthy proceedings, although this has improved over the last 5 years. Regarding the quality of its justice system, Malta generally performs extremely poorly when assessed on the accessibility of justice, especially regarding legal aid and media communication. However, there are some promising scores linked to the use of ICT in the judicial system as a means of improving accessibility and efficiency. A major weakness identified for Malta relates to the resources allocated to justice, with legal aid and training for judges receiving some of the lowest scores in the EU.

The standards which exist in Malta by which to measure justice are fairly comprehensive, with only a few gaps. Gender diversity in the judicial system is flagged as an issue for Malta in both a lack of standards on gender diversity and in a lack of female judges. The independence of the judiciary in Malta is only perceived to be good by around half of the population, but has a far more positive perception among businesses.

Efficiency of the Justice System

Timeliness is essential to the smooth running of a judicial system, and is used by the Scoreboard as an indicator of efficiency. Malta has improved since 2010, when, with an estimated time of over 800 days to resolve a case in court, length of proceedings were ranked second longest in the EU after Portugal. The most recent figures from 2014 show the average number of days to resolve a case in court down to just below 600, which, although an improvement, remains by far one of the longest periods in the EU.

Another indicator of efficiency is the number of cases pending, which expresses the number of cases which remain to be dealt with at the end of a period. Malta scored relatively well on this indicator, with around 2 cases pending per 100 inhabitants throughout 2010-2014, placing it at a similar level to the 12 best performing Member States.

Quality of the Justice System

The quality of justice systems is measured in the Scoreboard by focusing on: the accessibility of justice for citizens and businesses; adequate material and human resources; putting in place assessment tools; and using quality standards.

As an indicator of accessibility, the Scoreboard rates the availability of information online about the judicial system for the general public, with the highest score being 5/5, awarded to 17 Member States. Malta, among the lowest scoring Member States is awarded a score of 3/5, with gaps in information available online relating to starting a proceeding and the costs of proceedings.

Another indicator of accessibility to justice is legal aid, for which Malta scores the 3rd lowest out of the 27 Member States represented. According to the Scoreboard, the amount of annual public budget allocated to legal aid in Malta between 2010 and 2014 is barely above €0 per inhabitant, with the highest figure in the EU found in The Netherlands, at just under €30 per inhabitant.

The use of ICT systems in courts is also viewed as an indicator of accessibility of justice, as well as a way to reduce delays and costs. With the facilities for electronic submissions by lawyers available in just 25% of courts, Malta is among a third of Member States which have electronic submissions available in some courts. Malta fared far better on the indicators of submissions of small claims online, electronic communications in court and the availability of judgments online– achieving the highest possible score for all three.

However, in terms of media communications as an indication of accessibility to justice, Malta was awarded the lowest possible score of 1/7, due to a lack of any allocated official in charge of explaining judicial decisions to the media – unlike 14 other Member States which have such an official in all instances and therefore scored 7/7.

The Scoreboard presents resources as necessary to the effective functioning and quality of the justice system. The annual budget spent on law courts in Malta between 2010-2014 places it in the middle of the spectrum relative to other Member States. However, in terms of human resources, the amount spent on judges is the 3^rd lowest of the 27 Member States, and Malta is one of just 4 Member States which does not have any compulsory training for judges.

The nature of training available for judges in Malta is significantly more limited than in most Member States, with a complete absence of continuous training on judicial ethics, court management, IT skills or press communication.

The Scoreboard also illustrates the proportion of female judges, which in Malta is around 45 % in the first instance, just over 10% in the second instance, and nearly 30% in the Supreme Court, which overall makes it one of the worst performing Member State in terms of gender balance.

The Scoreboard highlights that tools to assess the functioning of courts are essential for improving the quality of justice systems and may take the form of monitoring and evaluation of court activities through ICT and surveys. Malta received a score of 4/7 on monitoring and evaluation activities, which cover: an annual report; time frames; postponed cases; and performance and quality indicators, but lack a regular evaluation system and specialised staff.

On the use of ICT for court activity statistics, Malta achieved the highest possible score along with just over half of the Member States. Malta is one of 11 Member States which is reported not to have carried out any surveys in 2014.

Standards can drive up the quality of justice systems, and in 2015 the European Commission began working with contact persons within the Member States on the standards relating the functioning of justice system. Whilst Malta has standards set within most of the defined areas, there are some gaps in standards, most notably in the active monitoring of case progress and the workload of the courts.

Independence of the Judiciary

The final area reported in the Scoreboard is judicial independence, which is a requirement stemming from the right to an effective remedy enshrined in the Charter of Fundamental Rights of the EU. In addition to information about perceived judicial independence, the Scoreboard shows how justice systems are organised to protect judicial independence in certain types of situation where independence could be at risk.

The perception of the independence of the judiciary by the public is represented, and in Malta is perceived to be ‘very good’ or ‘fairly good’ by nearly half of the general public. Around 20% of the general public perceive the level of independence to be ‘fairly bad’, 10% as ‘very bad’ and the remaining 20% do not know. Among businesses, 65% believe the independence of the judiciary to be ‘fairly good’, 5% ‘very good’ and nearly 30% perceive it as ‘fairly bad’ or ‘very bad’.

The Scoreboard also presents a range of indicators of structural independence, including safeguards of the transfer of judges without their consent. Malta has one of the highest number of possible situations in which a judge can be removed, however, unlike around one third of other Member States, no such removals took place in 2014. Malta scores well on the allocation of cases in order to ensure impartiality, with all cases allocated at random or according to a set criteria.

Research carried out by Lara Farrell

For more information contact Carla Camilleri

Category: Opinion