The honouring of membership obligations to the Council of Europe by Malta
- Parliamentary Assembly
debate on 23 June 2022 (23rd sitting) (see Doc. 15546, report of the Committee on the Honouring of Obligations
and Commitments by Member States of the Council of Europe (Monitoring
Committee), co-rapporteurs: Mr Bernard Fournier and Mr George Loucaides). Text adopted by the Assembly on
23 June 2022 (23rd sitting).
Malta became the 18th member State
of the Council of Europe in 1965. Recently it has been the focus of
attention from the international community, including the Parliamentary
Assembly, as a result of the assassination of anticorruption journalist
Daphne Caruana Galizia, and the authorities’ response to it. The Assembly
reiterates its position taken in Resolution 2293 (2019)
Galizia’s assassination and the rule of law in Malta and beyond:
ensuring that the whole truth emerges”. It welcomes the establishment,
on its recommendation, of an independent public inquiry commission.
It notes with concern this commission’s findings, published on 29
July 2021, of malfunctioning democratic institutions in the country
and in particular its conclusion that there is a culture of impunity
and institutional omertà
Malta. The Assembly calls upon the Maltese authorities to continue
their work and efforts to fully address the concerns and recommendations expressed
in the report by the independent public inquiry commission.
2. The Assembly’s report on Daphne Caruana Galizia’s assassination,
as well as the opinion of the European Commission for Democracy
through Law (Venice Commission) on the constitutional arrangements for
the separation of powers and independence of the judiciary, laid
bare a systemic malfunctioning of democratic and rule-of-law institutions,
and were a watershed moment for the country. The Assembly therefore sincerely
welcomes the reforms initiated by the authorities to address the
shortcomings and recommendations made in these texts, especially
with regard to the independence of the judiciary and appointment
procedures for official positions. While these reforms constitute
marked progress, they only partially address the concerns and shortcomings
that were noted. In the view of the Assembly, a comprehensive and
holistic reform of Malta’s democratic institutions and system of
checks and balances is still urgently needed. This is all the more important
in the context of the deeply rooted political and social polarisation
in Malta, which permeates nearly all aspects of Maltese society
and endangers the functioning of its democratic institutions.
3. The Assembly therefore welcomes the establishment by the President
of Malta of a constitutional convention to design a reform of Malta’s
constitutional framework, which will help ensure that these reforms have
wide support and acceptance in Maltese society. The Assembly encourages
the authorities to ensure a broad and comprehensive consultation
process and to provide the constitutional convention with a clear mandate
and strict time frame to complete its work.
Malta’s Parliament consists of part-time members of parliament.
This undermines its capacity for legislative initiative and its
capacity to provide proper parliamentary oversight of the executive.
In addition, the need for members of parliament to have secondary
employment increases the parliament’s vulnerability to corruption
and conflicts of interest. The Assembly therefore recommends a far-reaching
reform of the Maltese Parliament with the aim of establishing a
full-time parliament that can provide proper parliamentary oversight and
regain legislative initiative. In addition, the Assembly invites
the Maltese Parliament to:
limit and circumscribe the possibility for, and types of, secondary
employment by members of parliament;
4.2 define and delimit by law the list of allowed secondary
functions, including in Officially Appointed Bodies, for members
4.3 abolish the constitutional requirement that stipulates
that ministers must be members of parliament;
4.4 introduce public financing for political parties with
a view to reducing their dependence on private donations, which
have an inherent risk of conflicts of interest and corruption.
5. The Assembly welcomes the reforms that have been implemented
with regard to the appointment process for judges and magistrates.
These reforms have strengthened the system of checks and balances
over this appointment process and reduced its vulnerability to politicisation.
This is a step forward with regard to strengthening the judiciary.
In this respect, the Assembly particularly welcomes the strengthening
of the role of the president in the appointment process while reducing
the extensive and discretionary powers of the prime minister. Given
the increased powers of the president, his or her direct election
by Maltese citizens should be explored.
6. The reform of the judicial appointment process and of the
prosecution service, separating the function of State advocate from
that of the attorney general and removing the attorney general from
the Commission for the Administration of Justice are important steps
to strengthen the independence and impartiality of the judiciary.
Another welcome development in that respect has been to move the
responsibility for prosecuting most crimes from the police to the
attorney general. At the same time, the Assembly encourages the
authorities to implement further reforms as recommended by the Venice
Commission and the independent public inquiry commission. It reiterates
that strengthening parliamentary oversight over the executive is
essential in this respect. In addition, the Assembly recommends
that the parliament adopt the required legislation to ensure that acts
that have been declared unconstitutional by the Constitutional Court
immediately lose their legal force.
7. Despite welcome reforms, the prime minister maintains considerable
control over the civil service, which undermines the latter’s independence
from political forces. A key concern in this respect is the excessively
high number of political appointees, also known as “persons of trust”,
in Malta’s civil service, whose appointments bypass legal civil
service appointment procedures. The high number of political appointees
and lack of legal regulations governing these positions increases
the vulnerability of Malta’s civil service to conflicts of interest and
cronyism. Recent reforms have not sufficiently addressed this issue
and the Assembly therefore urges the authorities to implement additional
reforms with a view to legally limiting the appointment of persons
of trust to a small number of clearly defined and regulated positions.
8. The Assembly welcomes the recent reforms that have strengthened
the position and independence of the office of the ombudsperson,
which performs an important institutional oversight function over
the authorities. However, it regrets the lack of enforcement of
the right of information of the ombudsperson, and the limited follow-up
given by the parliament and executive to the ombudsperson’s reports,
which weaken the efficient functioning of this important institution.
A key concern for the Assembly is the continuing vulnerability
of Malta’s public sector to corruption. Despite the high perception
of corruption there has been little visible response and a coherent
overall strategy to prevent corruption in public institutions is
lacking. This has created a culture of impunity. Overcoming this culture
of impunity and institutional omertà
one of the key challenges facing Maltese society and its democratic
institutions and should be addressed as a matter of utmost priority.
In this respect, the Assembly:
the structural weaknesses that have limited the results and effectiveness
of the Permanent Commission Against Corruption;
9.2 welcomes the establishment and efficient functioning of
the office of the Commissioner for Standards in Public Life; it
recommends that the authorities strengthen the powers and the resources given
to the Commissioner for Standards in Public Life and consider the
further streamlining of anticorruption institutions to avoid overlap
and interference between them;
9.3 recommends that the authorities further strengthen the
Protection of the Whistleblower Act to ensure that whistle-blowers
who divulge their knowledge to the media are sufficiently protected,
and change the requirement that external whistle-blowers have to
report to the Cabinet of Ministers Office to be granted immunity
from prosecution, which can act as a barrier to civil servants coming
forward and reporting fraud and corruption;
9.4 deplores the structural lack of implementation and enforcement
of the Freedom of Information Act that renders this law ineffective.
This needs to be addressed as a matter of urgency. In this respect,
it is important to underscore that a culture of transparency and
openness cannot be achieved by legislation alone but also needs
a commensurate change of behaviour and attitude;
9.5 is concerned about the vulnerability to corruption and
money laundering of Malta’s “citizenship by investment” programme
and calls on Malta to abolish this programme.
10. The Assembly is deeply concerned about the polarised media
environment and the challenges faced by the media, including direct
threats to journalists, that negatively affect press freedom in
Malta. It therefore welcomes the recent establishment of a committee
of experts on media with a view to strengthening media freedom in
Malta. The abuse of anti-defamation legislation and strategic lawsuits
against public participation (SLAPPs) to silence journalists is
an issue of increasing concern that needs to be addressed as a matter
11. The Assembly is concerned that, despite considerable progress,
gender inequality and stereotypes remain deeply rooted in Maltese
society. Despite improvements in legislation, representation of
women in politics and government is still low. The Assembly, however,
welcomes the amendments to the constitution to put in place a mechanism
to rebalance the gender distribution in parliament and its application
following the general elections in March 2022 that resulted in 12
additional seats for women. The Assembly therefore welcomes the
new draft equality law that is before the parliament and encourages
the parliament to adopt it without delay. The Assembly notes that
Malta is one of the very few Council of Europe member States to prohibit
abortion entirely, including in cases of rape or danger to the life
of the mother. Reproductive rights and health are a key aspect of
women rights that need to be improved in Malta as a matter of priority.
12. The Assembly recognises that Malta is a frontline Mediterranean
State with regard to irregular migrants and asylum seekers, whose
numbers are very high in comparison to Malta’s small population.
The Assembly calls upon other European States to show commensurate
solidarity with Malta in this respect. At the same time, it urges
the Maltese authorities to ensure that their responsibilities and
human rights obligations with regard to irregular migrants and asylum
seekers are fully honoured and to step up efforts in this regard.
13. Malta faces important challenges to the functioning of its
democratic and rule-of-law institutions, which, if left unaddressed,
could affect the level of democratic consolidation in the country.
The Assembly welcomes the efforts of the Maltese authorities in
this respect, but further reforms, in particular with regard to
its institutional checks and balances and the fight against corruption,
are still needed. It invites its Committee on the Honouring of Obligations
and Commitments by Member States of the Council of Europe (Monitoring Committee)
to continue following the developments in the country and report
back to the Assembly if the developments so warrant.