Venice Commission welcomes proposed reforms, but deems checks and balances inadequate

Clifton Fenech (DOI)

Though it has welcomed many of the reforms being proposed by government, the Venice Commission believes that they “will not yet be sufficient to achieve an adequate system of checks and balances.”

The Council of Europe body, whose official name is the European Commission for Democracy through Law, argued that the reforms still left too much power at the hands of the government. Though it decreases the powers of the Prime Minister, which the commission had deemed excessive, these powers are largely devolved to Cabinet.

Instead, the commission suggests that more power should be shifted to Parliament – which it deemed in need of strengthening – and to the President.

However, it welcomed various proposals presented by the government on 20 April, 9 June, and 17 June, which Prime Minister Robert Abela and Justice Minister Edward Zammit Lewis seized upon in a press conference on Friday evening.

A ‘crucial step’ for Maltese democracy – Abela

In a press conference which saw journalists focus on another issue – claims that Yorgen Fenech made millions off an Enemalta deal in Montenegro – Abela pledged to present the proposed reforms to Parliament in short order.

“This is a crucial step in the evolution of our democracy, where our system of checks and balances will be further enhanced,” Abela said. Zammit Lewis similarly described the reforms as crucial, comparing them to the constitutional reforms of 1974 and 1987.

The process, Abela said, resulted in the commission welcoming “practically all our proposals for legislative reform.” Though that much is true, the commission also flags a number of recommendations that have not been taken up, though the government informed it that the proposals presented were part of a wider set of reforms.

No automatic annulment of unconstitutional laws

Zammit Lewis highlighted one area of disagreement: the government is resisting enshrining the principle of erga omnes application of Constitutional Court judgments, which would see any law found unconstitutional in a judgment immediately struck down.

The government’s resistance to this principle stems from economic concerns, as the minister himself highlighted: rent and housing laws already deemed to be unconstitutional could impact thousands of tenants on protected leases.

The commission is thus suggesting that while Malta would not move towards a full erga omnes effect, Parliament should be obliged to act on legal provisions that are deemed to be unconstitutional.

Appointment reforms

The government is proposing requiring a two-thirds majority to appoint – or remove, should that be necessary – the President, with a two-thirds majority also required for the Chief Justice. The commission is proposing, however, that should there be parliamentary deadlock on the latter, it would be up to judges to elect the Chief Justice.

The power of appointment for various top officials and independent commissions is being shifted from the PM to Cabinet.

The Venice Commission also welcomed proposed reforms on the selection of new members of the judiciary, through which sitting magistrates and judges will form a majority of the Judicial Appointment Committee which would propose the three most suitable candidates. It would then be up to the President to select the most suitable candidate, without receiving advice from the government.

Report welcomed by Civil Society Network

In a statement, the Civil Society Network said that it welcomed the Venice Commission’s report, stating that like the commission, it had recognised the positive steps the government had taken before meeting with civil society.

But it added that it agreed with the commission that there was still room for more reforms to strengthen Maltese democracy, stating that fewer powers should be in the hands of the government.

CSN also said that the proposed reforms should be put to a national debate in which civil society could participate, insisting that reforms strengthening democracy should be made transparently and inclusively.