Rule of law NGO Repubblika has warned it will not be party to any “Trojan horse” or false reforms of Malta’s constitution. 

In a detailed position paper sent to the Council of Europe's Venice Commission in reaction to the government's proposals to strengthen the rule of law, Repubblika insisted the process should not be dominated by the government or a “coalition of the two political parties”.

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 proposals announced last week, the government said it would shift the power of key appointments from the prime minister to the Cabinet and nominations for judicial appointments would be sent directly to the president.

But the NGO warned that the government’s current proposals are too half-hearted and diluted to address the central issues flagged by the Commission.

With regard to judicial appointments, Repubblika said it could not understand why the Judicial Appointments Committee (JAC) should not have the authority to make the final choice on who to offer the job to, instead of sending the nominations to the president - more so since, as the law stands, the president, other than in clearly defined cases, exercises all his functions in accordance with the advice of the cabinet.

"As the proposal stands – and here is where we must doubt the sincerity of the government – the appointment would still be made by the prime minister in a disguised form," it argued.

Similarly, it said, it saw no reason why the JAC could not make the choice of Chief Justice autonomously from any political authority. 

The Repubblika document also discusses prosecutions, the Permanent Commission Against Corruption, persons of trust, the police, and the role of the prime minister, among other areas.

"Replacing the power of the prime minister to appoint persons in high office by
transferring that power to “the government” is a purely cosmetic development" it says.

Repubblika warned that should the government’s proposals be implemented, Malta’s prime minister will remain all powerful, its institutions weak and the openness to corruption flagrant. 

It called for a structured dialogue with all stakeholders in the community, civil society and parliamentary parties and institutions, to stimulate a “free and unhampered debate” on constitutional and institutional reforms. 

The objectives of separation of powers, accountability, transparency, open government and equality before the law should be the guiding principles of this process, it said. 

Repubblika said the constitution should be amended, not replaced, and changes should be targeted as thematic sectors, not adopted as a package. 

“Changes that in isolation could increase the powers of the executive should be adopted together with changes that curtail them”. 

On Monday, the Nationalist Party presented its own proposals, including the appointment of a Commissioner to combat corruption and increased powers for the president, who they say should be appointed by a two-thirds majority in Parliament.

Read Repubblika's position paper by clicking on pdf below.