In this post we examine the Venice Commission’s Opinion CDL-AD(2020)019 on the 6 Acts adopted by the Government on the 29 July 2020. In a previous post, we examined the process undertaken by the Government whilst seeking to implement the legislative changes proposed in Opinion CDL-AD(2020)006.
It is important to note that the Acts were adopted prior to receiving the opinion of the Venice Commission which was requested by the Government itself. On 23 June 2020, the Minister for Justice transmitted 10 bills to the Venice Commission and requested an urgent opinion of the Venice Commission by no later than the end of June 2020. The 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. On 1 July 2020 the bills were presented to Parliament for a first reading, however they were not yet in the public domain. On the 29 July 2020, the Maltese Parliament unanimously adopted 6 of the 10 bills and notified the Venice Commission of this on the 4 August 2020.
In Opinion CDL-AD(2018)028, the Venice Commission brought attention to the history of the Maltese Constitution; specifically to its lack of changes where its UK counterpart had effected reforms. The Constitution allowed for the Prime Minister to retain the majority of the power afforded by the highest law of the land, meanwhile other important actors (including the President, Parliament, the Cabinet of Ministers, the Judiciary, the Ombudsman etc) were not vested with sufficient power to allow for required checks and balances in order for proper separation of powers. The Acts examined below were aimed at implementing the recommendations of the Venice Commission proposed in Opinion CDL-AD(2020)006.
1. ACT No. XLIII of 2020 Constitution of Malta (Amendment) Act relative to the appointment of the members of the Judiciary
The Commission’s recommendations start off with addressing the disproportionately strong powers held by the Prime Minister, the Executive power of the State, over judicial appointments. These appointments do not concern the workings of the Executive but rather concern the Judicial sector of the State, therefore leading one to question why such powers fall within the Prime Minister’s realm of competence. Under Paragraph 41 of the Opinion, it is stipulated that the Maltese authorities remain reluctant to allow the Judiciary to autonomously appoint its own members due to its small size (44 judges and magistrates, including the Chief Justice). Act No.XLIII of 2020 amends Articles 96, 96A and 100 of the Constitution, which shall be analysed further on.
How do these recommendations seek to depoliticize the judicial sector and restore the State’s separation of powers?
The Commission firstly criticized the duality of the Attorney General’s role in acting as both an advisor of the Government and as prosecutor. These overlapping duties act as a potential deterrent to the separation of powers of the State, especially since the Attorney General previously was a member of the Judicial Appointments Committee (JAC). Further to the amendments, Article 96A(1) of the Constitution lays down that the JAC shall be composed of the following members:
- The Chief Justice, as chair;
- Two members elected for four years by the judges of the superior court;
- One member elected for four years by the magistrates of the inferior courts;
- The Auditor General;
- The Ombudsman; and
- The President of the Chamber of Advocates.
Therefore, the new law removes the Attorney General from remaining a member of the JAC, thus substantially reducing the influence of executive power in judicial appointments. Furthermore, the introduction of a cooling off period of two years before the President of the Chamber of Advocates can be appointed to the judiciary, was also seen as a positive step with a view to secure the independence of the judiciary. This is further emphasized through Article 96 and 100 of the Constitution which now stipulates respectively that judges and magistrates are appointed by the President acting upon the recommendation of the JAC.
Despite this improvement, the Venice Commission highlighted some unaddressed issues and presented a recommendation stating that:
- Publicity of vacancies and publicity of candidates: the Venice Commission welcomed the introduction of a public call for vacancies. However, it notes that the announcement of the short-listed candidates together with the name of the appointment candidate, and not before, does not meet the recommendation in their June 2020 Opinion. The Commission considers that the publication of the names before the President takes a decision is a key element of transparency.
- Ministerial Appointments: The residual power of the Minister of Justice to request the JAC for advice on the appointment to any other judicial office or office in the courts is seen as problematic since the Minister does not have any role with respect to judicial appointments. The Venice Commission suggested to delete any reference to the Minister.
- Criteria of candidates: the Venice Commission questions the adoption of the constitutional provisions regulating the criteria of the candidates due to current practice. Furthermore, it highlights the need for the JAC to be provided with the appropriate human resources to assist them.
What about the appointment of the Chief Justice?
The Commission also recommended the depoliticisation of the appointment of the Chief Justice. Although judicial appointments are now made by the JAC, the same cannot be said for the appointment of the Chief Justice. The new Article 96(3) of the Constitution stipulates that the Chief Justice shall be appointed by the President in accordance with a resolution passed in Parliament supported by a minimum two-thirds majority. Although this majority vote is instrumental in ensuring that both parties in Parliament would have to neutrally assent to a specific contender for the appointment of this judicial post to take place, there still remains concern relating to the possibility of lobbying politicians for the post.
The Venice Commission is critical of the fact that the amended Article 96(3) does not consider an anti-deadlock mechanism in the eventuality that the qualified majority voting system leads to a Parliamentary impasse. Furthermore, it again proposes that the election of the Chief Justice would be carried out by the supreme court judges.
2. ACT No. XLIV of 2020 to further amend the Constitution of Malta relative to the appointment of the President of Malta
This act amended Article 48 of the Constitution to require a 2/3 majority of the votes in Parliament for the appointment of the President. This requirement further distances the President from the ruling party of the day and could improve on the much needed checks and balances. However, the amendment again did not include any anti-deadlock provision. The Venice Commission recommended that a mechanism acceptable to both government and opposition be found.
The President can also be removed by a 2/3 majority where there are sufficient bases to show that he is unable to continue in the performance of his obligations or where there is “proved misbehaviour”. However, the Venice Commission suggests an inclusion of the right to appeal to the Constitutional Court against the findings of such behaviour before the vote is taken in Parliament.
3. ACT No. XLV of 2020 to provide for the amendment of the Constitution of Malta and to the Commission for the Administration of Justice Act, Cap. 369, relative to the removal from office of judges and magistrates
How does this Act enable a fairer mechanism for the removal of members of the judiciary from office?
The new amendment removes Parliamentary control over the procedure of dismissal of judges and magistrates. In practice, this means that the disciplinary role has been shifted onto the Commission for the Administration of Justice (CAJ). The composition of the CAJ no longer includes the Attorney General and according to the amended Article 101A of the Constitution is now composed of the following:
- The President;
- The Chief Justice;
- Two members elected for 4 years by judges who shall also be judges;
- Two members elected for 4 years by magistrates who shall also be magistrates;
- Two members appointed for 4 years, one of whom shall be chosen by the Prime Minister and the other by the Leader of the Opposition. They must satisfy the following criteria: They shall be at least 45 years of age, they enjoy the respect of the public as well as having a reputation of integrity and honesty;
- The President of the Chamber of Advocates (an ex officio appointment).
Importantly, any dismissal may be challenged by a judge or magistrate through an appeal before the Constitutional Court. When analysing the current members of the Commission, it is evident that the majority of them comprise a part of the judiciary.
Furthermore, the Venice Commission recommends to remove the power of the Minister of Justice to advise the President in relation to the subrogation of judges when the Chief Justice fails to do so. The power of the Minister in this regard is seen as problematic from the view point of separation of powers.
Removal of the Attorney General and the State Advocate
The Venice Commission notes that the removal of the Attorney General and the State Advocate is now subject to a requirement of 2/3 majority in Parliament in cases of proved inability to perform the functions of office or proved misbehaviour. Again here, the Commission recommends that there needs to be an expert body or an appeal to the Constitutional Court against the decision for removal, before Parliament takes a final decision by 2/3 majority, as was included in the instance of the removal of members of the judiciary by the same Act.
4. ACT No. XLVI of 2020 to amend various laws aimed at reforming the procedure by which appointments to the Permanent Commission Against Corruption are made
The previous 2018 Opinion had already expressed its concern with regards to the manner in which the Permanent Commission Against Corruption (PCAC) is set up. One of these primary concerns referred to the fact that membership is entirely dependent upon the decision taken by the Prime Minister. Secondly, the PCAC findings were transmitted to the Minister of Justice who lacks any power of investigation.
How did the manner of appointment change?
This Act introduced changes in the manner of appointment of the three members of the PCAC whereby the duty to appoint is shifted entirely onto the President, (a) following a minimum two-thirds majority in Parliament in relation to the chairperson, and (b) in accordance with the Prime Minister’s advice for one member and that of the Leader of the Opposition for the other. Although seen as an improvement the Venice Commission considers that the inclusion of outside expertise into the appointments would be a further improvement.
Transmission of PCAC findings to the proper organ
An amendment to Article 11 of the Permanent Commission Against Corruption Act changed the procedure in that when an investigative report has been concluded by the PCAC, it is obliged to send the findings to the Attorney General rather than to the Minister of Justice.
However, the Commission refrained to comment on the implementation of the recommendations made by GRECO in its Fifth Evaluation Round or the proposals by the Commissioner for Standards in Public Life “Towards Higher Standards in Public Life Proposals to Modernise the Provisions of the Constitution on Parliament, the Judiciary and Public Administration“ of 30 October 2019.
5. ACT No. XLI of 2020 to continue implementing reforms in the Justice Sector by providing for the judicial review of decisions not to prosecute and other decisions of the Attorney General
The Opinion of the Commission in 2018 provided that, apart from the already present Article 541(1) of the Criminal Code (which allows for an appeal from the decision of the Police not to prosecute via the Sfida procedure), an additional possibility to appeal from a decision of the Attorney General (AG) not to prosecute was recommended to be introduced into the Criminal Code.
This Act aimed to include the right of appeal under Article 541 (4) of the Criminal Code. Its objective is to enable the complaint to be valid even where the decision not to prosecute is not issued within a reasonable timeframe. The Commission recommends that a complaint should also be allowed if there is no explicit “refusal” or “decision”.
Furthermore, the Act amends the Code of Organization and Civil Procedure giving the civil courts the power to review the AG’s decision and to declare such decision null, invalid or without effect and send back the matter to the AG for review. Again, the Commission recommends that the civil court should have the power to order the AG to prosecute and not simply seek the review of the AG’s decision.
Extension of the definition of Injured party
The amendments to the Act also allow for the Ombudsman, Commissioner for Standards in Public Life, the Auditor General as well as PCAC the status of injured party. However, these institutions are only afforded the status of injured party only when the institution itself would have reported the corrupt practice to the AG. The Venice Commission is critical of this limitation seeing as these institutions represent society and should be given this status independently of whether they reported to the AG or not.
This Act amends Article 64A of the Constitution and elevates the appointment, suspension and dismissal of the Ombudsman to constitutional level. The appointment and removal of the Ombudsman can only be carried out by the President further to obtaining a 2/3 majority resolution passed in Parliament. However, the former must be sought on the grounds of proven inability to conduct the functions pertaining to his office due to severe physical or psychological impairment or proved misbehaviour. The Venice Commission again recommends that in view of the criminal connotation of “proved misbehaviour” then it is necessary that there is the possibility to appeal such findings to a court.
What further powers has this Act provided to the Ombudsman?
The Act introduces the possibility of the Ombudsman to refer possible evidence of any corrupt practice directly to the Attorney General. However, the Commission is of the opinion that this power is limited to “evidence of any corrupt practices” and it recommends using wording such as “connected with or conducive to”. This inclusion would afford the Ombudsman with a wider margin of powers since not only would he be able to act in relation to the direct corrupt practice, but also have the necessary competence to report any act ancillary to it.
The Commission also recommends that the Ombudsman should not merely be empowered to report corrupt practices but should be obliged at law to do so.
Shortcomings of the role of Ombudsman
The Act states that the Ombudsman may conduct any investigation on the written complaint of any person having an interest who claims to have been aggrieved by any action. The Venice Commission is of the opinion that this wording is too narrow and could preclude any individual or legal person, such as NGOs, from having the right to access the Ombudsman on issues of general concern.
Furthermore, the Act did not raise the power of the Ombudsman’s right to information to the constitutional level as recommended in the previous opinions of the Venice Commission. The amendments do not address the concerns that in practice there is a lack of effective enforcement of the provisions of the law that regulate the proper conduct of investigations, including those when persons fail to comply with orders given to provide information. The Commission therefore reiterated its call that the Ombudsman’s rights to information should be elevated to the constitutional level.
The constitutional amendments are meant to have a profound and long-term impact in Malta and hence required wide consultations within Maltese society.Venice Commission, CDL-AD(2020)019, page 19
It has been stated time and again that the Venice Commission would have liked to see a structured dialogue with all stakeholders on these important constitutional changes. Furthermore, citizens, academia, and members of civil society, need to be be part of the wider discussion if real reforms are to be effected.
This blog post was written by Carla Camilleri and Christine Dimech.