The prime minister will no longer appoint high-ranking officials including the chair of the financial services authority and the data protection commissioner, the government has told the Council of Europe's rule of law oversight body. 

Instead, the responsibility of appointing top members of official commissions will be shifted to cabinet, with the government saying this would be in line with Venice Commission recommendations.

The commission provides legal advice to member states to help bring their legal and institutional structures in line with European standards. It had compiled a report in late 2018 listing recommendations to reform Malta's rule of law, on the request of the Council of Europe. 

In a letter to the Council of Europe's European Commission for Democracy through Law, Justice Minister Edward Zammit Lewis said legal amendments were being proposed to ensure the appointment of other high-ranking officials by Cabinet.

These included the members of the Employment Commission, the governor, deputy governor and directors of the Central Bank of Malta, the chair of the Malta Financial Services Authority and the members of the Board of Arbitration Centre.

It was also being proposed that the Cabinet, following consultation with the Opposition leader, appoint the Information and Data Protection Commissioner.

In its 2018 report, the Venice Commission had said that Malta needed better checks and balances to ensure proper rule of law on the island. 

It had described the Office of the Prime Minister as being at “the centre of power” and institutions too weak to provide enough checks and balances.

Former prime minister Joseph Muscat had previously committed to implementing the changes being proposed, but did not provide any timeline. Zammt Lewis did not say when the changes were planned to take place.

Anti-corruption commission 

In his letter, Zammit Lewis said that that the commission had also flagged structural shortcomings in the setup and operation of the Permanent Commission Against Corruption.

Legal amendments were being proposed to allow for the appointment of the PCAC’s chair by the President, acting on a resolution by parliament that is supported by two-thirds of its members. 

The two remaining members of the PCAC will be appointed by the President on the advice of the cabinet after consulting with the opposition leader. 

Permanent Secretaries and Persons of Trust

According to the Venice Commission, permanent secretaries should be selected upon merit by an Independent Civil Service Commission, and not by the Prime Minister.

Zammit Lewis explained that proposed legal amendments will ensure that the Public Service Commission – an independent constitutional body – will make appointment recommendations to the president after considering recommendations by the Principal Permanent Secretary.

In turn, the Principal Permanent Secretary will be appointed by the president on the advice of the cabinet, after consulting with the Public Service Commission. 

Separate provisions will meanwhile limit engagement of persons of trust to consultants to ministers of parliamentary secretaries, staff in secretariats of ministers or parliamentary secretaries and appointments of a temporary nature whenever a post remained vacant following repeated public calls. 

There will also be a maximum number of people who can be engaged as persons of trust in secretariats of ministers and parliamentary secretaries. However, Zammit Lewis did not say what this maximum figure would be.

Judicial appointments

The local authorities believe that a rolling public call, “which has consistently proven to be the most effecting method for attracting the most suitable candidates” for judges or magistrates should be retained. 

This system ensured the publication of judicial vacancies and will be open for candidates from inside and outside the judiciary, Zammit Lewis said in his letter. 

The Maltese authorities will meanwhile implement the commission’s recommendation and the composition of the Judicial Appointments Committee (JAC) will be revised. Two additional judges and a magistrate, elected by their peers, will be added to the committee.

As a result of this change, half of the members of the committee will be members of the judiciary, with all levels being represented.

Another change in the composition will be that the public prosecutor will no longer be involved in the appointment of members of the judiciary and will be substituted by the State Advocate.

The Chief Justice will be given a casting vote in addition to his original vote. The Maltese authorities believe that having the Chief Justice presiding over the committee is likely to inspire greater public confidence in the committee.

Under the new proposed system, when there is a judicial vacancy, the JAC will propose the three most suitable candidates directly to the president, who will make the selection.

The new system, Zammit Lewis assures, will eliminate the possibility of having candidates appointed directly by the government or of the government vetoing a proposed candidate.

Appointment of Chief Justice ‘must differ’

The Maltese authorities meanwhile insisted that the appointment of the Chief Justice must differ from the rest.

“Malta is a small nation where the judiciary complement is of 44 members. Therefore, the Chief Justice enjoys wide powers.”

Leaving the appointment in the hands of the JAC could prove "awkward", the government told the Commission, given that the majority of the JAC would, following changes, be members of the same judiciary, “and it is widely known that such a position is sought after by sitting judges”.

The government is therefore proposing that the Chief Justice be appointed through the support of two-thirds of the members of Parliament.

On this point, Zammit Lewis writes, there is already agreement between the government and the opposition. 

“Malta acknowledges that this deviated from one point mentioned in the commission’s opinion. However, we must accept the socio-political national context and consequently we respectfully insist that this is the best methodology.”

‘A historic step'

In a statement, the government said that despite being hampered by the COVID-19 pandemic, in a few weeks the government still managed to push forward with its legislative proposals based on the 2018 Opinion of the Venice Commission. 

“The government is determined to enhance the Maltese institutions, with the objective of strengthening our country’s reputation, both on a European and an international level,” the Justice Ministry said.

While tabling proposals in conformity with the Commission’s proposals, the government made sure it “does not abandon the Maltese legal traditions, and further strengthens the existing systems”. 

According to the letter - a result of ongoing discussions with the commission over the past weeks – the government’s proposals will be a "set of historic reforms" for Malta.

“These are bold, historic measures, which this administration, led by Prime Minister Robert Abela, is taking towards better rule of law and good governance in the organs of the state.”

The government, the ministry added, had not shied away from letting go of its discretion which it had for decades, and move towards systems that give citizens peace of mind of living in a stronger democracy. 

Consultation with interested parties

The government will be consulting with all interested parties, including civil society, the ministry said.

It appealed “for good sense and a sincere and constructive approach from all sides, so that it can then move forward in the best interest of the country”. 
Once the consultation process comes to an end, the government will be taking its final decision on the Opinion of the Venice Commission. 

The government was determined to implement further reforms, including others led by President George Vella in his eventual launch of the Constitutional Convention, it said.

Reacting, the Nationalist Party said that it should have been consulted about the proposals, but instead it had not even been informed about them. 

"This is not the way serious consultation is done in a democratic country," the PN said. 

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