The Rule of Law conundrum: Is Malta on the right track?

The criticism directed towards Malta on the state of its rule of law, particularly by EU institutions has been very sharp and direct. Yet the Maltese Government set out on a major reform of its constitution and institutional setup which have been in place since Malta’s Independence, and largely part of the legacy of the British colonial rule.

The reforms implemented by the Government of Malta in recent months have earned the plaudits of major international institutions, from the Venice Commission to the European Commission Vice President as well as credit rating agencies.

Following a request by campaign group Repubblika, a recent judgement by Europe’s top court backed the way Malta appoints members of the judiciary. Despite the EU Court’s decision in favour of Malta, the Maltese Government kept improving the system further as now the President of Malta will appoint judges and magistrates, without the involvement of the Government.

“We are delivering what is right,” Malta’s Prime Minister Robert Abela said in reaction to this.

As it turns out – over 50 different pieces of legislation were enacted in the past 2 years, our analysis shows.

This is the first piece of evidence that the current efforts are effectively leading to a substantial improvement in Maltese institutional and justice systems. The current drive by the Maltese Government to reform and effectively implement its laws to European standards does not stop here, either.

Over 50 different pieces of legislation were enacted in the past 2 years, our analysis shows.

Noteworthy changes

Among the major changes has identified the following milestones that are of note:

    • The Commissioner of Police was appointed after a public call by the Public Service Commission, following the approval by Parliament’s Public Appointments Committee, in line with a revised Police Act; This has effectively changed a legacy tradition of over 50 years of Police Commissioners which were appointed by the Prime Minister.
    • Major Constitutional and Institutional reforms were implemented, with the endorsement by the Venice Commission, which have led to the Prime Minister relinquishing his power to appoint members of the judiciary, amongst other important legislative amendments; Once more overturning the way each member of the bench was appointed ever since Malta’s Independence in 1964.
    • The Chief Justice will also be appointed following a two-thirds majority vote in Parliament; To note that every Chief Justice in Malta’s modern history was appointed through a Cabinet decision.
    • The President of the Republic will for the first time ever be appointed following a two-thirds majority in Parliament rather than a simple majority. This is an important step considering the newly assigned executive powers with regard to the appointment of judges and magistrates.
    • The security of tenure of the Attorney General, along with the newly created constitutional role of the State Advocate was reinforced. Apart from enjoying the same tenure as the judiciary, they may now only be removed from their role following a two-thirds approval from Parliament;
    • Prosecutorial functions in specified serious crimes were transferred to the Office of the Attorney General from the Malta Police Force, thus creating an important and more noticeable distinction between the roles of investigator and prosecutor;
    • Judges and magistrates will be appointed by the President of Malta after having received three recommendations from individual members of the Judicial Appointments Committee.

This follows the appointment of eight new members of the judiciary via a public call. A first in local history.

A senior Government source working on the Rule of Law reforms told that although Malta has implemented unprecedented and wide-ranging reforms which were crucial and necessary, the work cannot stop here. “The process has been strengthened but we must not slow down in our resolve and action. There must be continuity and consistency in order to ensure that all the changes made are indeed sustainable and future proof for the benefit of citizens.”

Other reforms have been carried out in key institutions, reforms which were critically reviewed and renewed as and when required. Notably the Malta Financial Services Authority (MFSA) and the Financial Intelligence Analysis Unit were not only equipped with the necessary tools, but their budgets and staff complement were also significantly increased.

The European Commission’s 2020 Rule of Law Report on the rule of law situation in the European Union also highlights Malta’s numerous reforms to strengthen judicial independence together with the measures to strengthen the prevention and integrity framework.

There is much more work to be done. Yet, it is clear that the Maltese government is committed and engaged with international institutions to ensure effective implementation leading to more decisive reforms.

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