The government is planning to change the law so that it can force through its candidate for the new standards commissioner, introducing a so-called anti-deadlock mechanism.

Sources have confirmed this would be the government’s next step if the motions filed by Prime Minister Robert Abela on Friday – to fill the positions of standards commissioner and ombudsman – do not garner a two-thirds majority in parliament.

Despite failing to come to an agreement with the opposition over both offices, the government has filed parliamentary motions proposing Judge Joseph Zammit McKeon as the new Ombudsman, replacing Anthony Mifsud, and former chief justice Joseph Azzopardi as a replacement for the former Commissioner for Standards in Public Life, George Hyzler.

Abela said he believed that both retired judges have the qualifications, experience, integrity and skills necessary to serve in their respective roles.

The Nationalist Party has agreed on the choice of Zammit McKeon as ombudsman but it has insisted talks need to carry on over who is to become the next standards commissioner.

According to article 4 of the Standards in Public Life Act, a commissioner shall be appointed by the President of Malta acting in accordance with a resolution of the House of Representatives supported by the votes of not less than two-thirds of all the members of the House.

PN not keen on Azzopardi's 'efficiency levels'

Times of Malta is informed that the PN is unlikely to back the motion proposing Azzopardi, meaning it would not gain the required number of votes to pass.

Sources close to the Nationalist Party said its main objection to Azzopardi’s appointment was his “efficiency levels”. They said that when he was chief justice, presiding over the appeals court, the backlog of appeals had risen to extremely high levels. At the time, even the government was not happy with his work output and had delayed introducing the law extending the retirement age of members of the judiciary until Azzopardi had retired, a source said.

At the time, even the government was not happy with [Azzopardi’s] work output

The PN has not commented officially on this matter.

An anti-deadlock mechanism?

Answering questions last week, the prime minister said that if the impasse remained, the government was ready to invoke an anti-deadlock mechanism for the appointment to go through.

The law, however, does not cater for this mechanism. Sources close to the government said bringing into force an anti-deadlock mechanism would be the next step if no agreement was reached, although there was no explanation about what form it might take.

In parliament, the two-thirds majority rule, as opposed to a majority of members of the house, is applied to decisions of major consequence, such as amending the constitution or appointing a president or a chief justice.

The Venice Commission, which has made proposals to Malta on the strengthening of democracy through law, recommended that an anti-deadlock mechanism should come into play at least when government and opposition are at stalemate on nominations for president or chief justice.

For the president, this would take the form of an absolute majority vote after two failed attempts at a two-thirds majority. For the chief justice, it could take the form of a vote among judges of the supreme court.

In 2010, former PN MP Franco Debono had proposed an anti-deadlock mechanism when reforming the two-thirds majority for the President’s appointment. He had suggested that to avoid a constitutional deadlock, parliament should resort to at least the absolute majority. 

The posts of president and chief justice are constitutional ones and it would therefore require a two-thirds vote to change the way they are currently appointed. 

Rules to appoint the Commissioner for Standards in Public Life, on the other hand, only require a simple majority to alter. 

Abela hinted at the need for an anti-deadlock mechanism in an interview with Times of Malta last month. 

"These sorts of appointments show just how important it is to have an anti-deadlock mechanism, to reflect the majority's wishes," the prime minister said. 

Trading barbs

Meanwhile, both sides have continued to trade barbs over the lack of agreement. The government has accused PN leader Bernard Grech of backtracking after having given his word on Azzopardi’s nomination, while the PN has accused the government of wanting to push its candidate through at all costs.

The offices of the ombudsman and the standards commissioner have been left in limbo for seve­ral months after failure to agree on nominees. Hyzler vacated the role of standards commissioner in September, while Mifsud’s five-year term as ombudsman officially expired in March 2021 but he has remained in office until a replacement can be found.

In his annual report tabled recently in parliament, Mifsud said the failure to appoint a new public service watchdog was creating “uncertainty and demotivation” within the office of the ombudsman.

In a final press conference, Hyzler warned of “repercussions” on the office’s work if no one was immediately identified to replace him.

Hyzler had told Times of Malta it would be a grave mistake to leave the standards office empty as there was still a lot of work to be done.

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