B Explanatory memorandum
by Mr Georges Loucaides and Mr Bernard Fournier, co-rapporteurs
1 Introduction
1. Under its terms of reference
as defined in
Resolution
1115 (1997) (as modified), the Monitoring Committee is seized to
carry out a regular periodic review of the compliance of the obligations
entered into upon their accession to the Council of Europe by member
States that are not already under a full monitoring procedure or
engaged in a post-monitoring dialogue. Since the adoption of
Resolution 2261 (2019), these periodic review reports are submitted for debate
as separate reports accompanied by specific resolutions for each
country. The order and frequency of the countries selected for periodic
review are decided upon by the Monitoring Committee in accordance
with its internal working methods based on substantive grounds,
with the objective of producing, over time, periodic review reports
on all member States.
2. On 6 March 2019, the Monitoring Committee selected four countries:
France, Hungary, Malta, and Romania for periodic review. Following
the Bureau’s decision to revise the list of countries, which was
opposed by the Monitoring Committee, the Committee on Rules of Procedure,
Immunities and Institutional Affairs was asked for an opinion on
the interpretation of the relevant rules. Pending clarification,
the Monitoring Committee decided, on 16 May 2019, to suspend the
preparation of the other periodic review reports, including on the
one on Malta. The opinion of the Committee on Rules of Procedure
was adopted in January 2020. On 16 January 2020 the Monitoring Committee
decided to resume the preparation of the periodic review reports.
Regrettably, the preparation of the report was further delayed by
the outbreak of the global Covid-19 pandemic. In particular, pandemic
conditions delayed the organisation of a fact-finding visit to the
country, which is an essential part of the preparation process of
any monitoring report.
3. On 22 June 2020, Mr Bernard Fournier (France, EPP/CD) and
Ms Rósa Björk Brynjólfsdóttir (Iceland, UEL) were appointed rapporteurs.
On 15 April 2021, Mr George Loucaides (Cyprus, UEL) was appointed rapporteur
in place of Ms Brynjólfsdóttir, who had left the Assembly. As soon
as the pandemic conditions allowed, a fact-finding visit was organised
to Malta, which took place from 25 to 27 October 2021. We wish to express
our gratitude to the Maltese Parliament for the assistance provided
with the organisation of this visit.
4. Malta joined the Council of Europe on 29 April 1965, when
it became its 18th member State. Recently, Malta has received a
considerable amount of attention from the Parliamentary Assembly
following the assassination of anti-corruption journalist Daphne
Caruana Galizia on 16 October 2017, which was widely condemned by
the international community. In the Assembly it cumulated into the
adoption, on 26 June 2019, of
Resolution
2293 (2019) “Daphne Caruana Galizia’s assassination and the rule
of law in Malta and beyond: ensuring that the whole truth emerges”
based on a report prepared by Mr Pieter Omtzigt (Netherlands, EPP/CD)
for the Committee on Legal Affairs and Human Rights.
Note
5. In the course of the preparation of his report on the murder
of Daphne Caruana Galizia, and the authorities’ response to it,
Mr Omtzigt outlined a series of serious shortcomings with regard
to the functioning of Malta’s democratic institutions. These findings
with regard to the malfunctioning institutional framework in Malta
were confirmed, and further elaborated, by the findings in the opinion
of the European Commission for Democracy through Law (Venice Commission)
on “Constitutional arrangements and separation of powers and the
independence of the judiciary and law enforcement [in Malta]”
Note which had been requested by the Committee
on Legal Affairs and Human Rights.
Note In this opinion, the Venice
Commission concluded that the shortcomings encountered undermined
the proper functioning of the system of checks and balances in the country
as well as the independence of the judiciary from the executive.
6. The report of Mr Omtzigt and the subsequent Venice Commission
opinion that laid bare a series of systemic shortcoming with regard
to the democratic and rule of law institutions in Malta, were described
by most of our interlocutors, including from the ruling majority
and opposition, as a watershed moment for the country. A number
of reforms with regard to the constitutional system of checks and
balances, as well as with regard to the judiciary, were subsequently
initiated by the authorities, in close consultation with the Venice Commission,
to address these shortcomings. The assessment and recommendations
with regard to these reforms will constitute an important part of
this report, which will also look at the fight against corruption,
the media environment and relevant human rights issues. While this
report builds on several issues mentioned in Mr Omtzigt’s report,
it is important to underscore from the outset that the investigation
into Ms Daphne Caruana Galizia’s assassination and the government’s
response to it, is not within the remit of this report. Nevertheless, we
strongly encourage the authorities, and indeed all political forces
in Malta, to fully address and implement the findings and recommendations
made by the independent public enquiry commission in their report
on the assassination of Ms Caruana Galizia, and the authority’s
response to it.
2 Democratic Institutions
7. As mentioned, the findings
and conclusions of the Venice Commission opinion constituted a watershed moment
that led to the initiation of a series of reforms of the constitutional
and institutional framework in Malta. In the framework of the preparation
and implementation of these reforms two additional Venice Commission opinions
were requested by the authorities, one on “proposed legislative
changes to address the Venice Commission recommendations”
Note and a second one on “ten acts and
bills implementing legislative proposals subject of opinion CDL-AD(2020)006”.
Note In the following sections we will
outline the state of play regarding the functioning of the main
democratic institutions in Malta.
8. The establishment of a clearly defined and properly functioning
constitutional set of checks and balances is all the more important
in the context of the deeply rooted political and social polarisation
in Malta, which permeates nearly all aspects of the Maltese society
and endangers the functioning of its democratic institutions.
2.1 Parliament
9. Malta is a parliamentary republic
with a unicameral parliament. Its parliament of 79 seats
Note is elected on the basis of a proportional
system via a single transferable vote. Possibly also as a result
of historical reasons, the political landscape is a
de facto two-party system between
the ruling Labour party and the Nationalist Party, which is currently
in the opposition. The current ruling party, the Labour party, has
been in power since 2013.
10. In Malta, the position of an MP is a part-time position and
MPs generally need secondary jobs to cover their living costs. This
limits the time MPs have available for legislative work and control
of the government. As a result, as noted by the Venice Commission,
the parliament is a rather weak institution and struggles to provide proper
parliamentary oversight over the executive, especially in the current
increasingly complex and interlinked society. This is further compounded
by the fact that the Constitution requires that Malta’s Ministers (currently
26 in number)
Note are also MPs. In addition, in order
to complement their parliamentary salary, many MPs hold office in
“Officially Appointed Bodies”, for which appointment they depend
on the Prime Minister. Given the small size of the Maltese Parliament
it means that more than a quarter of the MPs have offices in, and
are financially dependent on, the same government bodies they are
supposed to control. This weakens parliamentary oversight and increases
the possibilities for conflicts of interests.
11. Parliamentary oversight is further weakened by the fact that
the part-time function of MP also reduces the time they have available
to prepare debates and draft legislation. During our visit we were
informed that as a result, most, if not all, draft legislation is
prepared by the government, weakening the legislative function of the
parliament. We also note that a part-time parliament needs a considerable
number of parliamentary support staff to conduct research and prepare
debates and draft legislation, which is not available at this moment.
The Venice Commission therefore recommended an increase in the parliamentary
staff to assist the MPs in their work, as well as the establishment
of a “Council of State” to advise the government and parliament
on governance and legislation, a role currently fulfilled by the
State Advocate. In the view of the Venice Commission, the establishment
of such a council would help increasing the quantity and quality
of independent information available to MPs to execute their tasks.
Note
12. As mentioned in relation to the appointment of MPs in Officially
Appointed Bodies, the fact that the position of MP is part-time
in Malta makes the parliament, and indeed the Maltese system of
governance as such, vulnerable for conflicts of interest and corruption.
The fact that most MPs will have to work in gainful employment next
to their job as parliamentarians, in a small society like Malta,
considerably increases the chances for conflicts of interest and
weakens parliamentary oversight even if the MP is not holding office
in one of the “Officially Appointed Bodies”. A number of recent
cases
Note have unfortunately
shown that the vulnerability for conflicts of interest and corrupt
practices is unfortunately not a strictly hypothetical question.
13. Regrettably, the recent reforms implemented by the Maltese
authorities did not cover the Maltese Parliament and its functioning.
In our view far-reaching reforms, with the aim of establishing a
full-time parliament, are essential to ensure the proper functioning
of the democratic institutions and system of governance in Malta.
This would allow the parliament to ensure proper parliamentary oversight
over the executive and allow it to regain its legislative initiative.
In addition, the move to full-time and properly remunerated MPs
would allow the parliament to considerably limit and circumscribe
the possibility for MPs to hold secondary employment, as they are
no longer financially dependent on it.
14. During our visit to Valletta, we noted that, while underscoring
the need to take the particularities resulting from Malta’s relatively
small society into account, there is widespread support among both
ruling majority and opposition for the establishment of a full-time
parliament. We have called upon all political parties to start the debate
on the reform of the parliament without delay, utilising the current
reform momentum. We were informed that the authorities intend to
initiate the debate on this issue after the parliamentary elections
which is to be welcomed.
15. While supporting the establishment of a full-time parliament,
a number of interlocutors expressed some hesitation with regard
to across the board interdiction of secondary employment for MPs,
which in their view, could result in suitable candidates reconsidering
to run for parliament. We have some understanding for this and note
that in several other parliaments in the Council of Europe geographical
space MPs can hold certain secondary functions. However, the list
of allowed secondary functions – including in so-called “Officially Appointed
Bodies”, should be clearly defined and delimited by law, in order
to avoid any conflicts of interest or vulnerability to corrupt practices.
Such a list should already be established now, and not wait until
the establishment of a full-time parliament.
Note
16. The establishment of a full-time parliament could also allow
a debate on reconsidering the constitutional requirement that ministers
obligatorily are members of parliament. Abolishing this, could both
strengthen parliamentary oversight and increase the pool of suitable
candidates for ministerial functions in Malta.
17. The Council of Europe, and in particular the Venice Commission
and the Parliamentary Assembly could play an important role in the
above-mentioned reform of the parliament by providing advice and
examples of best parliamentary practice in Europe.
18. Malta has a comprehensive legal framework on the financing
of political parties. However, many interlocutors, including from
both the ruling majority and opposition, mentioned party financing
as an issue of concern. Currently there is no system of State funding
for political parties which makes them dependent on private donations,
especially from businesses and other economic interest. It is clear
that such a dependence increases the possibilities for conflicts
of interest and corruption. We urge the political forces to introduce
public funding of political parties combined by a comprehensive
set of regulations for party and campaign financing, in line with
the recommendations of the Group of States against Corruption (GRECO).
2.2 President
19. The President of Malta is elected
for a five-year term by the Maltese Parliament and has a largely ceremonial
role. Until the recent reforms, the President was elected by simple
majority. Similarly, until recently, the President could be removed
by the parliament by simple majority, allowing, in effect, the appointment
and removal of the President by the ruling majority. This lessened
the possibility of the President to act as an independent counterweight
against the executive power. The Venice Commission had therefore
recommended that the President be appointed, and removed, with a
qualified majority to diminish the dependency on the ruling majority.
In response, in February 2020, constitutional amendments were adopted
that stipulate that a qualified 2/3 majority in parliament is needed
for the appointment or removal of the President. In case no 2/3 majority
can be found to appoint a President, the outgoing President shall
remain in office until such a majority can be found. The Venice
Commission has recommended that anti-deadlock mechanism for the
appointment of a president that is acceptable for all sides be found.
Note Nevertheless, the change has been
a welcome strengthening of the appointment and dismissal procedure
of the President.
20. Given the strengthening of the Presidential powers with regard
to judicial appointments (see below), a number of interlocutors
suggested that Malta should be moving towards a directly elected
President. This would also strengthen the constitutional role of
the President as an independent arbiter and additional check on
the powers of the government. For all those reasons we would indeed
recommend a change towards a directly elected President. However,
we wish to underscore however that both direct and indirect election
of a President are in principle in line with European standards.
21. The powers of the President are limited. However, his role
in judicial appointments has considerably been strengthened, at
the cost of those of the Prime Minister, in order to address the
concerns of the Venice Commission expressed in its opinion on the
“Constitutional arrangements and separation of powers and the independence
of the judiciary and law enforcement [in Malta]”. Until the adoption,
on 29 July 2020, of six acts by the Maltese Parliament to address
Venice Commission recommendations, the President appointed judges and
magistrates “acting in accordance with the advice of the Prime Minister”.
This meant in effect that the President appointed the candidate
proposed by the Prime Minster.
22. In addition, until 2016, the Prime Minister was completely
free in his recommendations. The first reforms to limit the powers
of the Prime Minister in this regard were adopted in 2016. Following
these reforms, all judge candidates, with the exception of the Chief
Justice, were recommended to the Prime Minster by the Justice Appointments
Committee (JAC), which is a sub-committee of the Commission for
the Administration of Justice (the national council of the judiciary).
The JAC was composed of the Chief Justice, the Ombudsperson, the Attorney
General, the Auditor General and the President of the Chamber of
Advocates. However, judicial vacancies were not published and instead
the JAC created a rolling register of vetted candidates from among lawyers
that have expressed interest to become a judge.
Note The JAC
was not allowed to rank the candidates and the Prime Minister was
free to select anyone he preferred from this list of vetted candidates
when a vacancy arose.
23. In a welcome development, since the adoption of the reform
of the appointment system in 2020, the JAC is now composed of the
Chief Justice, the Auditor General, the Ombudsperson, the President
of the Chamber of Advocates, as well as 2 judges and one magistrate
elected by their peers. As a result, judges have a majority in the
appointments commission, in line with European standards, which
is a positive step forward. Moreover, in addition to the exiting
public rolling call for judge candidates, individual vacancies will
now be published. The JAC now selects a list of three candidates
that will be directly, without involvement of the PM, sent to the President
who can freely select from this list based on the merits of the
candidates. The list of the three candidates will be published by
the President, but only after the appointment of the judge. The
Venice Commission had recommended the list would be published before
the appointment was made but the authorities argued that this, in
a small society like Malta, could lead to lobbying and speculation.
The reformed appointment structure has given a considerable new
power to the otherwise ceremonial function of the President while
reducing the extensive and discretionary powers of the Prime Minister,
and has strengthened the independence of the judiciary, in line
with Venice Commission – and GRECO – recommendations.
24. The reforms also changed the appointment procedure for the
Chief Justice, which is a key judicial function in the Maltese judiciary.
In order to depoliticise the appointment procedure for the Chief
Justice, which was recommended by the Venice Commission, the Chief
Justice is now appointed by the President in accordance with a resolution
of the parliament, adopted with a 2/3 majority. However, while this
ensures broad political support for the Chief Justice nomination,
an anti-deadlock mechanism is missing. The Venice Commission has
proposed appointing the Chief Justice on the basis of an election
by the Supreme Court judges, in the event of a deadlock in the parliament.
2.3 Government
25. According to the Maltese Constitution,
while executive power is formally vested in the President, the Cabinet
and Prime Minister decide on the general direction and control of
the Government of Malta.
Note As noted by the Venice
Commission’s opinion,
Note the Prime Minister is at the centre
of the political power of Malta and has far-reaching and wide political
powers.
26. Until the adoption of the reforms in 2020 the Prime Minister,
inter alia:
- appointed the Ministers from among the members of the
House of Representatives;
- recommended the candidates for the post of Attorney General,
Chief Judges and Judges to the President of Malta;
- appointed the Chief of the Police, the Police Governance
Boards, the Security Commissioner, the Data Protection Commissioner,
as well as other top public officers;
- assigned the Permanent Secretaries to the government ministries.
In this context it should be noted that the Chief Permanent Secretary
according to the Public Administration Act “shall take instructions
from the Prime Minister”;
- recommended to the President the members of the Central
Election Commission, the Public Service Commission, the Broadcasting
Authority, the Malta Financial Services Authority and the Permanent Commission
Against Corruption.
27. In order to address recommendations of the Venice Commission,
the Powers of Appointment Act has been amended with a view to limiting
the powers of the Prime Minister in the appointment of key institutional positions.
According to these amendments the appointments of the Governor,
the deputy Governor, and the directors of the Central Bank of Malta,
the Chairman of the Malta Financial Services Authority, the members
of the Board of the Arbitration Centre and the Information and Data
Protection Commissioner are now appointed by the Cabinet of Ministers
and no longer by the Prime Minister alone.
28. These recent reforms have, to some extent, reduced the powers
and discretion of the Prime Minister in the appointment of key positions,
but it remains a very powerful position that is still insufficiently counterbalanced
by a proper set of institutional checks and balances. As we have
mentioned above, key to establishing an effective counterbalance
to these powers is establishing a system of proper parliamentary oversight
by reforming the parliament into a full-time Assembly.
29. The Prime Minister has a very large margin of control over
the Civil Service in Malta. Until the implementation of the reforms
the Prime Minister appointed all the Permanent Secretaries, which
are the highest civil servants at the different ministries, as well
as the Chief Permanent Secretary. This is no longer the case. Following
amendments to article 92 of the Constitution (which governs the
position of Permanent Secretaries) the Chief Permanent Secretary
is appointed by the President on the basis of advice of the Cabinet of
Ministers and the Public Service Commission. The Permanent Secretaries
should be appointed on the basis of a merit-based process. However,
the Constitution continues to stipulate that the Chief Permanent
Secretary shall act on instructions of the Prime Minister. Thus,
through the Chief Permanent Secretary, who advises on the appointment
of the Permanent Secretaries, the Prime Minister still maintains
considerable control over the Civil Service which undermines its
independence from political forces.
30. This is compounded by the excessively high number of political
appointees in Malta’s civil service. These political appointees,
or persons of trust as they are known in Malta, are appointed by
the Prime Minister bypassing the normal civil service appointments
procedures. A proper legal basis for these positions and their appointment
is lacking and, as a result, many persons of trust are appointed
on what are not considered to be political positions. While Malta
has always had a relatively high number of political appointees
in its civil service, this number has reportedly exploded under
the current government. Reportedly, there are currently more than 1 200
persons of trust which is clearly excessively high for a civil service
of the size of Malta. In its report
Note on Malta in the framework of the
fifth evaluation round, GRECO expressed its concern that the high
number of political appointees, and lack of legal regulations governing
these positions, would lead to, or at least give the impression
of, cronyism. In response the authorities have introduced legal
reforms with the aim of limiting the persons of trust “to consultants
to Ministers or Parliamentary Secretaries, staff in the Secretariats
of Ministers or Parliamentary Secretaries and appointments of a
temporary nature whenever a post remains vacant after repeated public
calls are issued”. However, these reforms still do not set a maximum
number for such appointments nor their duration and still would
allow appointments to non-political positions. During our visit many
interlocutors underscored that despite these reforms, the use of
persons of trust still remains widespread, amounting to a system
of patronage with the evident risks of conflict of interest and
corruption. We urge for additional reforms that would legally limit
such persons of trust to a small number of clearly defined and regulated
positions.
2.4 Ombudsperson
31. The Ombudsperson is established
by the Maltese Constitution and performs an important institutional oversight
function over authorities. Until the recent reforms the appointment
and powers of the Ombudsperson were regulated by ordinary law, the
“Ombudsman Act”. The Venice Commission recommended that the appointment
and powers would be raised to the Constitutional level, which was
implemented by the authorities with the amendments to the Constitution
in 2020. The Ombudsperson is now appointed by the President acting in
accordance with a resolution of the parliament adopted by 2/3 majority.
A similar qualified majority is needed to request the President
to remove the Ombudsperson, which can only be done on the limited
grounds of inability to perform his functions or for proven misbehaviour.
These changes have strengthened the position and independence of
the Ombudsperson.
32. Also, as a result of the above-mentioned Constitutional amendments,
the right of the Ombudsperson to conduct independent investigations
has de facto been raised to
the Constitutional level, which had been recommended by the Venice
Commission. The Ombudsperson can now refer potential evidence of
corrupt practices directly to the Attorney general, although the
threshold remains very high, too high according to a number of interlocutors.
The Ombudsman Act now foresees that the Ombudsperson reports annually,
or as frequent as (s)he deems necessary, to the parliament which
will place his report on the agenda in a dedicated session. During
our meeting with the Ombudsperson, we were however informed that,
aside from his annual report, ad hoc and
special reports of the Ombudsperson in reality receive very little,
if at all, attention of the parliament.
33. Several shortcomings remain in the legislation governing the
Ombudsperson that should be addressed. While the Ombudsperson may
start an investigation on his own initiative or following a written
complaint, the wording of the law is very restrictive with regard
to whom can file such a complaint, effectively limiting it to persons
having an interest or being aggrieved by an action. A very strict
interpretation of this clause could prevent for example civil society
organisations to file complaints. In addition, the right to receive
information has not been raised to the Constitutional level and,
as underscored by the Ombudsperson himself on various occasions
– including in his meeting with us – the lack of enforcement of
the right to information of the Ombudsperson by the Maltese authorities
hinders the functioning of this institution and is of concern.
2.5 Constitutional
Convention
34. While addressing a number of
important recommendations of the Venice Commission, the reforms implemented
in July 2020 were only partial and left a number of systemic shortcomings
unaddressed, most prominently with regard to the functioning of
the parliament and parliamentary control and oversight. In its opinion
on the adopted reforms
Note the Venice Commission therefore
recommended that the authorities implement a “holistic” constitutional
reform in close consultation with the Maltese society, something
we wholeheartedly support.
35. The previous President of Malta therefore established a Constitutional
Convention in order to formulate changes to the Constitution.
Note The
current President of Malta, Mr George Vella who took office on 4
April 2019, has maintained the Constitutional Convention and in
his meeting with us confirmed his strong support for this process.
36. The Constitutional Convention has no executive powers but
makes recommendations to the parliament that, in the end, will be
responsible for adopting any proposed changes to the Constitution.
We were informed that the Convention consists of 150 members, approximately
40% of which from institutional bodies and the academia and the
remaining 60% from civil society. However, the civil society representatives
we met questioned how the members of this convention were selected,
in particular those representing civil society, and complaint about
a lack of consultation.
37. While reportedly a number of (online) consultations have taken
place and citizens have been invited to make suggestions via a dedicated
website, the work of the Convention has been mostly stalled by the
ongoing Covid-19 pandemic and no tangible concrete results have
been made.
38. As we outline in this report, comprehensive reforms of Malta’s
democratic institutions and institutional system of checks and balances
are still urgently needed. It is important that such far reaching
reforms have the support and acceptance of the full Maltese society.
A Constitutional Convention, if based on a broad and comprehensive
representation and consultation process in the Maltese society,
would indeed be an excellent vehicle to prepare these reforms. However,
it is important that such a Convention has a clear mandate and is provided
with a strict timeline to complete its task in order to ensure that
the adoption of these reforms are not unduly delayed.
3 Rule
of law
3.1 Reform
of the Judiciary
39. The Venice Commission, the
report by Mr Omtzigt, as well as the independent inquiry Commission
set up by the Maltese authorities, have raised several questions
with regard to the independence of the Judiciary in Malta and have
expressed concern about its vulnerability for politicisation which,
in turn, has affected its ability to efficiently fight corruption
in Malta.
Note
40. The Judiciary in Malta consist of about 20 judges and a similar
number of first instance magistrates. The Judiciary is headed by
the Chief Justice. A key deficiency affecting the independence of
the Judiciary has been the appointment procedure of judges and magistrates,
and the excessive discretionary powers of the Prime Minister therein.
This appointment procedure, and the changes made to address these
deficiencies have been outlined in the previous section.
41. The Commission for the Administration of Justice is the main
body governing the Judiciary in Malta. As per constitutional provisions
it is composed of 10 members: the President of Malta, who is also
the Chairperson of the Commission, the Chief Justice, the Attorney
General, two members elected from among the Judges of the Superior
Courts, two members elected from among the Magistrates of the Inferior
Courts (first instance), one member appointed by the Prime Minister
and one member appointed by the Leader of the Opposition and the
President of the Chamber of Advocates. The Chairperson only has
a casting vote, as a result of which members appointed by the judiciary
have the majority of votes on the Commission, in line with European standards.
The Attorney General was removed from the Commission by the reforms
adopted in July 2020.
42. The Committee of Judges and Magistrates, which is a sub-committee
of the Commission for the Administration of Justice, is responsible
for disciplinary proceedings. It can impose warnings or a pecuniary penalty
for small violations, up to a suspension of a magistrate or judge
for up to six months for more serious violations of the Code of
ethics or Code of disciplinary rules. In order to remove a judge,
the Committee has to report to the full Commission for the Administration
of Justice. This Commission, until the implementation of recent
reforms, could then propose to the parliament to remove a judge.
A decision to remove a judge needed to have the support of a least
a qualified 2/3 majority in parliament. As it was highly problematic
that a political body such as a parliament would play a decisive
role in a dismissal procedure for a judge, this procedure was changed
by the reforms adopted in July 2020. The final responsibility for
the dismissal of a judge is now solely the responsibility of the
Commission for the Administration of Justice.
43. The Constitutional Court “hears appeals from decisions of
other courts on questions relating to the interpretation of the
Constitution and on the validity of laws, as well as appeals from
decisions on alleged breaches of fundamental human rights. The Constitutional
Court also decides on the validity of the election of members of
parliament and the termination of their mandate, and the validity
of the election of the Speaker. It is composed of the Chief Justice
and two other judges”.
Note Laws or provisions
that are found unconstitutional by the Constitutional Court are
not automatically annulled or removed from the law. It is up to
the parliament to amend the law following a Constitutional Court
judgement. This does not always take place and unconstitutional
provisions continue to be applied leading to repetitive cases before
the Constitutional Court. As highlighted by the Venice Commission
on various occasions in respect of different countries, the execution of
Constitutional Court judgements is an essential requirement for
the rule of law. The Venice Commission therefore recommended amending
the Maltese Constitution to ensure that legal acts judged unconstitutional by
the Constitutional Court lose their legal force. However, the authorities
have argued that this is not in line with the legal tradition in
Malta and that this would lead to numerous complications, especially
with regard to the legal framework governing the protection of rents
in Malta, which could lead to serious social consequences. While
we do understand the importance of rent control, this should not
abrogate the effects of Constitutional Court decisions and we therefore
urge the parliament to ensure that acts that have been declared
unconstitutional automatically immediately lose their legal force,
as recommended by the Venice Commission.
44. Until recently, the vast majority of prosecutions in Malta
were carried out by the police, which is competent for both investigations
and prosecution in Malta. Only the most serious cases were prosecuted
by the Attorney General. In its evolution report GRECO considered
the central role of the police to be excessive.
Note In 2019, reforms
were implemented with the effect that any crimes punishable by two
years or more imprisonment are now prosecuted by the Attorney General’s
Office. Crimes punishable by less than two years of imprisonment
continue to be prosecuted by the police, but the objective is to
shift all prosecutions to the Attorney General’s office in the near
future, as soon as this office has acquired the necessary capacity
to take over all prosecutions from the National Police. In the same
reforms the functions of State Advocate and Attorney General were
separated, in line with recommendations by the Venice Commission.
45. Until recently, decisions by the Attorney General not to prosecute
could not be appealed, contrary to European norms and standards.
Following the reforms of July 2020, a decision not to prosecute
is now also subject to judicial review by the civil courts of justice,
as is the case for such decisions by the Head of the police in cases
where the police is competent to prosecute. Such appeals can inter alia also be brought by the Ombudsperson,
the Auditor General, the Permanent Commission Against Corruption
and the Commissioner for Standards in Public Life which have been
given the status of aggrieved parties.
3.2 Fight
against corruption
46. As highlighted in GRECO’s evaluation
report on Malta in the framework of its fifth evaluation round,
Note as well as in the report of the
Independent Inquiry into the murder of Daphne Caruana Galizia, the
deficiencies in the system of checks and balances as well as its
rule of law framework have made the Maltese public sector vulnerable
to corruption. This is compounded by the relatively small size of
Malta and the fact that Malta’s economy is primarily geared towards
the (offshore) financial services and online gaming sectors. Despite
the fact that “Malta has on paper an impressive arsenal of public
institutions involved in checks and balances”
Note the
perception of corruption is high with little visible response to
allegations of corruption which has created a sense of impunity
for such actions and a coherent overall strategy to prevent corruption
in public institutions is lacking.
Note To
underline the extent and seriousness of the issue, the Independent
Inquiry in its report concluded that in Malta there was “a culture
of impunity” that together with, according to many interlocutors,
an institutional omerta had resulted in a situation where, until
the murder of Daphne Caruana Galizia, persons close to the political
power in the country were practically untouchable. Overcoming this
culture of impunity and institutional omerta is one of the key challenges
facing the Maltese society and its democratic institutions.
47. In addition to the law enforcement structures, Malta has two
dedicated institutional bodies to combat and prevent corruption:
the Permanent Commission Against Corruption (PCAC) and the Commissioner
for Standards in Public Life. These institutions are complemented
by the Auditor General, who scrutinises the expenditure of public
bodies and the Financial Intelligence Analysis Unit (FIAU) which
is Malta’s specialised anti-money laundering agency.
48. The PCAC was set up in 1988 to advice ministerial bodies on
anti-corruption matters and investigate alleged or suspected corrupt
practices by public officials. It is composed of three members that
since the 2020 reforms are appointed by the President: one on the
basis of a parliamentary resolution adopted by a 2/3 majority, one
on recommendation of the Prime Minister and one on recommendation
of the leader of the opposition. Previously its members were appointed
by the President in accordance with the advice of the Prime Minister
after consultation with the leader of the opposition, which weakened
the independence of the Commission, especially in combination with
the fact that it reports to the Minister of Justice. The reforms
also gave the PCAC the right to report findings of corrupt behaviour
directly to the Attorney General, which was not the case before
the reforms.
Note In addition, the reforms have
now clarified that trading in influence as well as accounting offences
constitute to corrupt behaviour falling under the remit of the PCAC.
As a result of these structural weaknesses, the PCAC has until now
achieved little or no tangible results in fighting and preventing corruption
in Malta. In its evaluation report on Malta GRECO noted that the
PCAC is a weak body with investigation powers that are limited to
a small number of criminal offences, and whose “contribution to
Malta’s anti-corruption efforts have been negligible”.
Note GRECO also expressed
its concern about potential problems arising from the existence
of parallel jurisdictions between the police and PCAC and considered
that the PCAC “could be abolished”. The PCAC itself has argued that
its dissolution may violate Malta’s obligations under the United
Nations Convention on Corruption while pointing at the high level
of evidence needed to prove individual cases of corruption as a
reason for the relatively few prosecutions. We noted that the PCAC
in its entirety consists of 3 members and one secretary which raises
questions with regard to its suitability to contribute to fighting
the widespread and engrained corruption in Malta that was highlighted
by the report of the Independent Inquiry into the murder of Daphne
Caruana Galizia.
49. In 2017, the Maltese Parliament adopted the Act on Standards
in Public Life. Subsequently in 2018 the Commissioner for Standards
in Public Life was appointed for a fixed period of five years by
the President of Malta based on a resolution by the parliament adopted
with a 2/3 majority. The Commissioner is tasked with checking the
declarations of interests and assets of members of the House of
Representatives (including Ministers), Parliamentary Secretaries
and Parliamentary Assistants as well as certain other categories
of public officials. In addition, the Commissioner investigates
breaches of ethical standards and rules, and reports to the parliament
about its findings; and monitors lobbying activities and advises
the government regarding these matters. The Commissioner is obliged
to report to the parliament at least annually about the work of
his office.
50. The work of the Commissioner is overseen by the Committee
for Standards in Public Life, which is composed of the Speaker of
the Parliament, two members appointed by the Prime Minister and
two members by the leader of the opposition. It is the Committee
on Standards in Public Life that decides on any subsequent actions
and sanctions on the basis of the reports received from the Commissioner.
This was seen as an obstacle to the effectiveness of the work of
the Commissioner as this Committee is by design a political body, with
possible conflicts of interest. Since the 2020 reforms, the Commissioner
for Standards in Public Life can directly report to the Commissioner
of Police or the Attorney general in cases where from his investigations
it appears “prima facie that a criminal offence of corrupt practice
has been committed”.
Note During our visit the Commissioner
underscored that the level of proof needed was that of “chance of
probability” and not of “proof beyond reasonable doubt” which ensured
that suspicions of corrupt behaviour reported by the Commissioner can
be properly investigated by the police. These changes address an
important Venice Commission and GRECO recommendation.
51. In addition to its oversight function, the Commissioner can
also issue guidelines and recommendations to the authorities, including
on how the law should be interpreted when dealing with conflicts
of interest and corruption. The current Commissioner considers this
a very important element of the work of his institution that should
be further strengthened and enlarged. The Commissioner for standards
in public life is widely seen as an effective and efficient institution,
not the least due to the impartiality and commitment of the current postholder,
and several interlocutors argued that the Commissioner should be
provided with enhanced powers and resources to further its work,
and that it should absorb the PCAC. We would recommend that the authorities
strengthen the powers and the resources given to the Commissioner
and consider further streamlining of anti-corruption institutions
to avoid overlap and interference between them.
52. Two important pieces of legislation are in place to aid the
prevention and combat of corruption: the 2008 Freedom of Information
Act and the 2013 Protection of Whistle-blowers Act. The Whistle-blowers
Act is widely regarded as one of the best in Europe even if concerns
remain, such as the fact that whistle-blowers that divulge their
knowledge to the media are not (well) protected, as well as the
fact that external whistle-blowers have to report to the Cabinet
of Ministers Office to be granted immunity from prosecution, which,
in the view of the Commissioner for Standards in Public Life can
act as a barrier for civil servants to come forward and report fraud
and corruption.
53. The implementation and enforcement of the Freedom of Information
Act are an issue of concern as many of the provisions of the act
are not enforced by the authorities or only partially and with such
long delays that they render the information ineffective. Most of
the media and civil society representatives we met during our visit,
as well as public institutions such as the Ombudsperson, complained
about the structural lack of follow-up to their requests for information.
This is an issue of concern that should be remedied without delay.
In this context it is important to stress that this cannot be achieved
by amending legislation alone, but also need a commensurate change
of behavior and a culture of transparency and openness.
54. Malta is a large international finance and banking centre
that is highly vulnerable to money laundering.
Note In its fifth mutual evaluation
report in 2019, the Committee of Experts on the Evaluation of Anti-money Laundering
Measures and the Financing of Terrorism (Moneyval) and the Financial
Action Task Force (FATF) expressed concern about Malta’s capacity
to effectively counter and prosecute money laundering, including due
to a lack of available human and financial resources. Malta was
placed under enhanced follow-up and risked being blacklisted if
these concerns were not addressed by the next mutual evaluation.
In its first enhanced follow-up report of 2021, Moneyval and the
FATF considered that the Maltese authorities had made welcome progress
in addressing the deficiencies noted in the fifth mutual evaluation
report and was now complying or largely complying with the FAFT
recommendations. While the risk of blacklisting was avoided, additional
actions were deemed necessary to ensure full compliance with the
recommendations. Malta remains therefore under enhanced follow-up.
55. A particular issue of concern in relation to money laundering
and corruption has been Malta’s so-called citizenship by investment
programme, more commonly known as its “golden visa scheme”. This
legislation allows wealthy investors to obtain Maltese citizenship
and thus EU passports in return for considerable investments into
the Maltese economy.
4 Human
rights
56. Malta has a well-developed
institutional and legal system for the protection of human rights.
However, a number of human rights concerns have recently come to
the forefront. The assassination of Daphne Caruana Galizia has put
the spotlight on safety of journalist and media freedom in Malta,
but concerns have also been raised with regard to the rights of
women and gender equality as well as with regard to the treatment
of irregular migrants and refugees. In addition, the already mentioned
engrained culture of impunity
Note is
undermining the protection of human right on several fronts, not
in the least with regard to the media. This needs to be addressed
as a priority.
4.1 Freedom
of the media
57. Malta has a pluralist media
environment, but most private media are connected to the two main
political parties or their supporters and promote their political
views. As a result, the media environment reflects the deep political
polarisation in the Maltese society. This is compounded by the fact
that the public broadcaster is widely seen as a mouthpiece of the
government and biased in favour of whatever party is forming the
ruling majority at that moment. At the same time, Malta has a well-developed
IT infrastructure allowing the population a wide choice of different
internet media.
58. Malta was ranked 81 out of 180 countries in the 2021 World
Press Freedom Index by Reporters Without Borders (RSF). In its 2021
report on Malta, RSF concluded,
inter
alia, that “A political system that continues to muzzle
press freedom, discrimination in accessing information, and an inefficient
judicial process has continued to present obstacles to public interest
reporting as well as threats to journalists’ ability to do their
job safely”,
Note which
is of deep concern to us. The Independent Inquiry set-up in the
wake of the assassination of Daphne Caruana Galizia came to similar
conclusions with regard to the freedom of the media and role of
the authorities in this case, which underscores the seriousness
of the situation.
59. In her recent report on Malta, the Commissioner for Human
Rights of the Council of Europe called on the authorities to implement
reforms with a view to strengthening the protection of journalists
and to “refrain from any conduct that encourages hate speech against
them”.
Note Regrettably
the media representatives we met during our visit reported that
harassment of journalists, including threats to their life and safely
and trolling on social media, continues unabated and is not seen
as effectively investigated by the police. The Independent Inquiry
Report had recommended that a special police unit would be established
to investigate threats and attacks on journalists. The authorities
have not followed this advice, but the police force itself has established a
special contact point for journalists and has reportedly been more
forthcoming in investigating threats, including those originating
on social media. While this was welcomed by the media representatives
we met, they also underscored that, given the graveness of the situation,
such a contact point could not substitute the specialised police
unit recommended in the Independent Inquiry report.
60. As outlined in the previous section, journalists in Malta
face considerable obstacles in obtaining information from the authorities,
with request for information under the Freedom of Information Act
often ignored or unduly delayed as to render them ineffective. Media
play an essential role in ensuring transparency of governance which
is essential for the functioning of democratic institutions and
the fight against corruption. Amendments to the Law on Freedom of
Information should be adopted to close existing loopholes that are arbitrarily
used by the authorities to reject request for public information.
61. The abuse of anti-defamation legislation to silence journalists
is an issue of increasing concern. While defamation has been decriminalised
since 2018, Maltese libel legislation is vulnerable to abuse including
as a result of civil law provisions that allow civil defamation
cases to be transferred to the heirs in the event of the death of
the person being sued, which has a chilling effect on journalists.
Note In
addition, there has been a proliferation of the use of so-called
SLAPPS (Strategic Lawsuits Against Public Participation) against
journalist. SLAPPS are lawsuits filed with the intention to intimidate,
and ultimately censor journalists through the high costs of defending
themselves against litigation. Such SLAPPS are filed both in Malta
as well as in foreign jurisdictions. It is clear that the use of
SLAPPs is a threat against freedom of expression. The Maltese authorities
reportedly intend to implement anti-SLAPPs legislation and wish
to co-ordinate this at the European level given that this is a problem
that transcends national jurisdictions. At the same time, we urge
the Maltese authorities to amend existing defamation legislation
to prevent its abuse.
62. The report by the Independent Inquiry has outlined a number
of recommendations to strengthen the safety of journalist and to
safeguard the freedom of expression and the media in Malta. We urge
the Maltese political forces to fully implement these recommendations
without hesitation or delay.
63. In a welcome development, we were informed that a Committee
of Experts on Media was established on 11 January 2022 which is
currently chaired by former Chair of the Public Inquiry. Its tasks
are to analyse the media environment in Malta and to advise on the
draft changes to the legislation to enhance the protection of media
freedom in Malta.
4.2 Women’s
rights
64. As reported by the Commissioner
for Human Rights in her recent report, despite considerable progress, gender
inequality is deeply rooted in the Maltese society and paternalistic
attitudes and stereotypes regarding the role of women in family
and society remain. This is often seen as related to the socially
conservative Maltese society, but this was discounted by the representatives
of women’s organisations we met, who pointed to the fact that Malta,
in 2018,
Note with
considerable support from the society, introduced LGTBI rights legislation and
an action plan, that in many aspects was in line with European best
practices.
65. Malta has signed and ratified most international human rights
instruments that cover women’s rights and gender equality, including
the European Convention on Preventing and Combating Violence against
Women and Domestic Violence ( CETS No. 210, “Istanbul Convention”).
The Group of Experts on Action against Violence against Women and
Domestic Violence (GREVIO) published its Baseline Evaluation Report
Note on Malta in November 2020. In this
report GREVIO welcomed the legal measures and amendments to existing legislation
adopted by the Maltese authorities but emphasised that considerably
more efforts should be made to implement the convention in practice.
In this respect, they noted that the Maltese gender-neutral approach of
referring to “gender-based violence” in legislation did not recognise
the disproportionate occurrence and effects of violence against
women. GREVIO underscored that there is a need to strengthen the
application of a gender perspective and to considerably improve
the initial and continuous training of all professionals who interact
with victims. They also pointed at the need to intensify inter-institutional
co-operation. Regarding protection orders, GREVIO considered that
they should be available independently from, or cumulatively with, other
judicial procedures. Protection orders are problematic, as they
are not a means of preventing offences and the burden of proof falls
on the victim, which may expose him or her to a risk of victimisation.
66. The current legislation dealing with equality, the Law on
Equality between Men and Women, dates from 2003 and according to
many interlocutors needs to be strengthened. A draft for new Equality
Bill and Human Rights legislation, including a bill to establish
a Human Rights and Equality Commission, have been prepared and tabled
but the adoption process has stalled. We were informed by both ruling
majority and opposition that the adoption of these laws would take
place in the new convocation of the Maltese Parliament after the elections
on 26 March 2022. As a result of the legislation adopted, 12 seats
for women were added to the Maltese Parliament following these elections.
The gender employment gap in Malta is large and representation of
women in politics and government still low. In that respect we welcome
the newly adopted legislation to increase the representation of
women in the new convocation of the parliament.
Note This
would be an important step forward and hopefully will be replicated
on the level of the government that will be formed after the elections.
67. Reproductive rights in Malta are an issue of concern. Malta
has one of the strictest abortion laws in the world and is only
one of the two Council of Europe member States to prohibit abortion
entirely, including in cases of rape or danger for the life of the
mother. Seeking or having an abortion is criminalised with prison sentences
of up to three years although in practice this is not implemented.
Performing or prescribing an abortion is criminalised with a prison
sentence of up to four years and the possibility of losing one’s
medical license.
Note Seeking
or obtaining an abortion abroad is not criminalised. A proposal
to legalise abortion was tabled in 2021 by an MP from the Democratic
Party,
Note but this proposal
reportedly failed to gather support from the two main parties. The
day-after anti-contraceptive pill has only been legal in Malta since
2016, but reportedly a number of pharmacies refuse to carry these
pills on conscientious grounds. Without wishing to step into an
ideological debate we do consider that the issue of reproductive
rights and health needs to be improved and we hope that this will
be addressed by the new parliament as a matter of priority.
4.3 Migrants
and Refugees
68. Malta is a Mediterranean frontline
State with regard to irregular migration and asylum seekers, and
the numbers that reach the Maltese shores are extremely high in
comparison to the relatively small size of the Maltese population.
Note The Maltese authorities underscored
that Malta alone could not deal with such numbers of migrants and
asylum seekers and complained about a lack of solidarity within
the European Union for Maltese predicament. While we urge other
European States to show commensurate solidarity with Malta, this does
not release Malta of its responsibilities and human rights obligations
with regard to irregular migrants and asylum seekers, which was
also highlighted in the recent report of the Commissioner for Human
Rights.
69. Until recently new arrivals were as a rule detained until
their case was decided upon. As a result of this and the arrival
of an increasing number of migrants, a situation compounded by the
Covid-19 pandemic, the migrant reception system, was overwhelmed.
The European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment (CPT) carried out an
ad hoc visit to Malta from 17 to
22 September 2020, where it found the reception centres to be on
the verge of collapse. with especially safeguards to protect the
vulnerable lacking. Specific measures to combat Covid-19 were found
to be so problematic as to amount to inhuman and degrading treatment
incompatible with Article 3 of the European Convention on Human
Rights (ETS No. 5).
Note
70. While Malta has abolished mandatory detention of migrants,
in practice many are still placed in detention centres and, despite
considerable efforts by the authorities, the conditions in the reception
and detention centres remain of concern. Further efforts are required
in this respect.
71. In its most recent report on Malta,
Note ECRI
expressed concern about the high levels of hostility towards immigrants,
the absence of a long-term integration strategy for refugees and
beneficiaries of local forms of protection as well as the risks
of migrants being exploited in undeclared jobs or given extremely
low wages. ECRI also highlighted the very restrictive rules on family
reunification which define as family members only spouses and unmarried
minor children.
4.4 Other
human rights issues
72. In its most recent report on
Malta, the Group of Experts on Action against Trafficking in Human
Beings (GRETA)
Note expressed
concern that Malta remains one of the destination countries for
victims of trafficking in human beings. It considered that the legal
definition of trafficking in human beings should be amended and
that the fact that the offence of trafficking is committed against
a child should be introduced as an aggravating circumstance. Assistance
and support to victims of trafficking should be put in place; training
should be provided to all professionals responsible for the implementation
of assistance and protection measures for victims of trafficking;
and a comprehensive and coherent statistical system on trafficking
should be developed.
73. In its report,
Note ECRI expressed concern
about hate speech and hate crimes. Hate speech is only punishable
under the Penal Code for incitement to hatred or violence if the
person(s) concerned are in Malta. This needs to be addressed.
5 Conclusions
74. The developments following
the assassination of Daphne Caruana Galizia brought to light a deeply rooted
political and social polarisation in the Maltese society and a systemic
malfunctioning of democratic institutions in the country. The opinion
of the Venice Commission on the constitutional system of checks
and balances and the independence of the judiciary, as well as the
report of the independent public commission established by the authorities
following Daphne Caruana Galizia’s assassination were a watershed
moment for the country. The Maltese authorities and Parliament reacted
with the adoption of a series of welcome reforms to address the
shortcomings in the democratic and rule of law institution. While
these reforms constitute marked progress, they only partially address
the concerns and shortcomings that were noted. A comprehensive and
holistic reform of Malta’s democratic institutions and system of
checks and balances is still urgently needed. A key aspect of this
reforms should be a far-reaching reform of the Maltese Parliament,
with a view to establishing a full-time parliament that can provide
proper parliamentary oversight and regain legislative initiative.
This would also allow Malta to address a series of important vulnerabilities
of its political institutions to conflicts of interest and corruption.
75. We welcome the fact that the need for a holistic reform of
Malta’s democratic institutions, including its Parliament, are supported
by all the main political forces in Malta, and indeed by a considerable
majority in Malta’s society. In this report and resolution, we have
outlined a number of recommendations for these reforms that should
help guide the Maltese authorities and Parliament in this important
task. We are convinced that the Council of Europe, and specifically
its Venice Commission can, and should, play an important role in
assisting the authorities in drafting and implementing these much-needed
reforms. The Assembly should continue to follow this process closely
and we therefore suggest that the Monitoring Committee would agree
to present its next periodic review report on the honouring of membership
obligations by Malta to the Assembly, no later than five years from
now.
