Last week’s letter to the Venice Commission on rule of law reforms, published by the justice minister, has been greeted in political and legal circles with a mixture of optimism and scepticism.
The good news is that the government is finally grappling with the reform and engaging with the Council of Europe’s authoritative Venice Commission on all recommendations it had made almost a year-and-a-half ago. The bad news is that the reforms as proposed would only amount to superficial changes that would fail to adequately address serious rule of law weaknesses – and the cronyism and partisanship that has dragged down the country. It is evident the government remains reluctant to relinquish much of its political power.
For example, while permanent secretaries would be chosen by the Public Service Commission and recommended for appointment to the president, the choice of whom to appoint would have to give “due consideration” to the principal permanent secretary’s recommendation. Since the latter would be appointed by the cabinet – and, of course, the cabinet would merely endorse the prime minister’s choices in these instances – little would change.
The PM still gets to influence who is appointed through his proxy, the principal permanent secretary.
Likewise, although the proposal to have the chairperson of the Permanent Commission Against Corruption (PCAC) appointed through two-thirds parliamentary vote is welcome, the prime minister – through the cabinet – still gets to choose its two other members.
Moreover, while the fact that the PCAC’s reports would be submitted to the attorney general instead of the minister is a good move, it does not guarantee checks and balances for as long as civil society cannot judicially challenge the AG if he fails to prosecute on corruption cases.
On judicial appointments, which form a key plank of the Venice Commission recommendations, the government has conceded the choice to the president.
Yet, the government seeks to have the Judicial Appointments Committee present a shortlist of three to the president, who would then choose one of them.
The question arises, why not let the committee decide whom to appoint?
Why is having one man or woman – the president – make the choice from among three nominees better than having the choice made directly by a committee made up of the judiciary and key state officials? Likewise, why would the appointment of the chief justice by two-thirds parliamentary vote be better than the candidate being directly chosen by the committee?
It seems the only indirect answer given to these questions by the minister’s letter is talk of respecting Malta’s “socio-political national context” and “legal traditions.”
But if this means retaining the influence of politicians in everything and not addressing the tendency to make appointments drawn from partisan lines, then the country would have failed to embrace the fundamental spirit of the Venice Commission recommendations.
In its fundamental aspect, rule of law reform requires redistribution of power among multiple poles. The pre-eminent of those poles is the president and the judiciary – hence the reason why political influence on appointments or removals has to be as tenuous as possible. Other poles are institutions empowered to investigate and prosecute politicians for corruption, as well as permanent secretaries and others in the state apparatus answerable not to their political masters but to the spirit and letter of the Constitution and, finally, civil society with legal avenues available to challenge those other poles.
The proposals in the letter do not take the country there by a considerable distance.