In this second side-by-side comparison, Jacob Borg looks at how the government’s proposed changes to various institutions square with recommendations made by constitutional experts on the Venice Commission. 

Permanent Commission Against Corruption

What the Venice Commission recommended:

The Permanent Commission Against Corruption (PCAC) should be dissolved to avoid overlapping competences or it could be kept as a body reporting on corruption and sending the reports to the public prosecutor. In the latter case, an inquiry by the PCAC should not block any investigation or prosecution by the police and the public prosecutor.

What the government will do:

Legal amendments are being proposed so that the chairman of the PCAC, currently appointed by the prime minister, will be appointed by the president after a vote requiring a two-thirds majority is taken in parliament. The two remaining members will be appointed by the president, acting on the advice of Cabinet after consulting the opposition leader.

An amendment will also be proposed so that PCAC reports will be sent directly to the public prosecutor, rather than the justice minister.

The Ombudsman

What the Venice Commission recommended:

In order to give the Ombudsman office sufficient weight, the Venice Commission recommended raising the rules on appointment and dismissals of the Ombudsman as well at his/her powers to the constitutional level. This concerns notably the right to information of the Ombudsman. Parliament should be obliged to debate reports addressed to it by the Ombudsman.

What the government will do:

Legal amendments are being proposed to include provisions on the Ombudsman’s appointment, removal and suspension in the constitution. The proposed amendments also oblige parliament to debate the Ombudsman’s annual report.

The Prime Minister

What the Venice Commission recommended:

In order to balance the power of the prime minister, some of his/her competences, notably as concerns the appointments of members to independent commissions, should be shifted from the prime minister to the Cabinet of Ministers. Collective decisions reduce the danger of abuse.

What the government will do:

The government will amend the law so that high-ranking officials are appointed by cabinet rather than the prime minister alone. The Information and Data Protection Commissioner will be appointed by Cabinet after consulting with the opposition leader.

Permanent Secretaries

What the Venice Commission recommended:

These high-ranking officials should be selected upon merit by an independent civil service commission and not by the prime minister. Permanent secretaries should not be political appointees, but independent and permanent, high level, civil servants, who should be able to serve any government.

Consequently, they should have security of tenure, until retirement or dismissal for good specified reasons. Political (executive) power and administration are two separate things, and this should remain so.

What the government will do:

The Public Service Commission will make recommendations to the president for the appointment of permanent secretaries, based on clear and pre-established requirements. The principle permanent secretary will also be consulted.

The principle permanent secretary will be appointed by the president, acting on advice of Cabinet after consulting with the Public Service Commission.

The President

What the Venice Commission recommended:

The president can be an important check on the wide powers of the executive. Strengthening the president could be achieved, for example, by electing the president with a qualified majority in parliament, combined with an anti-deadlock mechanism.

Even more important for the independent exercise of the powers of the president is that s/he can be removed by qualified majority only.

However, even without such a major constitutional change, the powers of the president vis-à-vis the prime minister could be strengthened by removing the power of the prime minister to make certain proposals for appointment.

What the government will do:

The government argued that for recent appointments, the president has been nominated in agreement with the opposition.

It said the Commission’s proposal will be discussed within the ambit of the constitutional convention, and only then will the required decision be taken.