Government proposals on governance: highlights on report to the Venice Commission

A Chief Justice by two-thirds parliamentary majority, the divorce between the remit of state advocate and attorney general and the devolution of the powers of the Prime minister on to cabinet were three of the main proposals which, government sent to the Venice Commission.

The reforms are based on the recommendations made by the Venice Commission back in December 2018.

Judicial Appointments

The Maltese authorities will retain the system which ensures the publication of judicial vacancies and will also be open for candidates from both inside and from outside the judiciary.

The Judicial Appointments Committee will be revised so that two additional judges and magistrate will be added to the Committee.

The public prosecutor will no longer be involved in the appointment of members of the judiciary and will be substituted by the State Advocate who will have no prosecution functions.

The Chief Justice will be given a casting vote in addition to his original vote.

The Judicial Appointments Committee will propose the three most suitable candidates for appointment to the judiciary directly to the President of Malta who will make a selection amongst the candidates.

The proposal of the Judicial Appointments Committee will be accompanied by a detailed report expressing the Committee’s views on the suitability of each of the proposed candidates.

The Chief Justice

As regards the appointment of the Chief Justice, the Maltese Authorities insisted that the procedure must differ from the rest since Maltese society is small.

The government proposed that the appointment will be made through a two-thirds majority of the members of Parliament.

Judicial Discipline

Maltese authorities will remove the public prosecutor from the composition of the Commission for the Administration of Justice. As a result, the Attorney General will be substituted by the State Advocate.

Moreover, Judicial discipline, short of removal of a member of the judiciary,  will be the prerogative of the Commission for the Administration of Justice and the decision of the  Commission of the Administration of  Justice will be subject to appeal before the Constitutional Court. The Maltese Authorities said that there may be room for change in the sphere of the removal of judges or magistrates, but such change should not extend to the impeachment proceedings. 

Prosecution

Following the establishment of the office of the State Advocate, the functions of the public prosecutor remained vested with the Attorney  General whose office enjoys constitutional independence.

It is envisaged that not later than the end of 2020 the office of the Attorney General will be responsible for the public prosecutions of the most serious offences. 

Permanent Commission Against Corruption (PCAC)

It is being proposed that the chairperson of the  PCAC be appointed by the  President acting in accordance with a resolution of the House of Representatives supported by the votes of not less than two-thirds. The two remaining members of the PCAC will be appointed by the President in accordance with the advice of the Cabinet after consulting the Leader of the Opposition.

Reports which contain a finding of corrupt conduct will be transmitted directly to the public prosecutor.

The Ombudsman

The provisions dealing with the appointment, removal and suspension of the Ombudsman will be included in the  Constitution. It will also be mandatory for  Parliament to debate the annual report prepared by the Ombudsman.

The Prime Minister’s powers

The appointment of other high-ranking officials such as members of the Employment Commission and the directors of the Central Bank of Malta will be affected by the Cabinet of Ministers and not the Prime Minister.

The Cabinet of Ministers after consulting the Leader of the Opposition will appoint the Information and Data Protection Commissioner.

Permanent Secretaries

The Public Service Commission will make recommendations  to the  President of the  Republic for the  appointment  of Permanent Secretaries

The appointment of the Principal Permanent Secretary shall be made by the President acting on the advice of the Cabinet of Ministers after having consulted with the Public Service Commission.

Positions and Persons of Trust

The Public Administration Act will be amended to establish a clear legal basis for the appointment of persons of trust. These will limit engagements to consultants to Ministers or Parliamentary Secretaries, staff in the Secretariats of Ministers and appointments of a  temporary nature whenever a  post remains vacant after repeated public calls are issued.

A maximum number of persons that may be engaged as persons of trust in the Secretariats of Ministers and Parliamentary will also be established.

The President of Malta

Once the Constitutional Convention is concluded decisions will be taken on how the President of Malta is to be appointed.

It was also noted that for recent appointments, although the nomination was always put forward by the Prime Minister, there was an agreement with the Leader of the Opposition.