WEBINAR 6: EUROPE (OVERVIEW) - Democratic Decay (and Renewal?) in Malta
John STANTON
20 November 2020
Context
In October 2017, Maltese investigative journalist, Daphne Caruana Galizia, was murdered near to her home in Bidnija, Malta. At the time of her death, she was working on a number of investigations that alleged various levels of corruption in Malta. These focused, inter alia, on the sale of Maltese passports; on allegations of money laundering; and on revelations in the Panama Papers linking senior Government figures to shell companies in Panama; off-shore accounts often used to keep hidden wealth, facilitate money laundering and avoid taxation. Investigations and legal proceedings into those responsible for the killing are still ongoing, but focus has been on Yorgen Fenech, a prominent Maltese businessman, and his alleged links with figures within the Maltese Government. These include Keith Schembri, the chief of staff to former Prime Minister, Joseph Muscat. Fenech was charged in November 2019 for “complicity in the murder”; Schembri, whilst questioned, was released without charge, though he has subsequently been arrested in September 2020 for allegations that “he laundered a secret €100,000 cut on passport sales” back in 2016 and again in November 2020, along with former Cabinet Minister Konrad Mizzi. Various government figures, including Schembri and Muscat have resigned their posts. As investigations continue, there are suggestions that Schembri, and other figures within the Government, are implicated in the scandal. Caruana Galizia’s investigations into corruption, however, as well as the circumstances surrounding her assassination, are indicative of a broader concern for the state of democracy in Malta and the strength of the rule of law on the archipelago. This post identifies these concerns as part of a broader trend of democratic decay.
Democratic Decay
Concern for the state of democracy is prominent across the world. The Institute for Democracy and Electoral Assistance reported in 2019 that 43 per cent of the world’s population live “in countries with democratic erosion”. This “erosion” is typically theorised through the notion of democratic decay. Defined as “the incremental degradation of the structures and substance of liberal (constitutional) democracy”, democratic decay is expressed in myriad concepts, each reflecting a particular form of decay, depending on the institutions and features affected, the broader political climate and the underlying governmental system. A defining feature of such decay, though, is that it is incremental and gradual. Rather than being a consequence of overt, sudden and violent rejection of democratic rule, it “is typically an aggregative process made up of many smaller increments … many of … [which] are ‘concealed under the mask of law’ … Even though most or even all of the individual steps [towards decay] are taken within constitutional limits, in sum they lead to qualitative changes in the legal and political systems”. This is true in Malta as in many other countries. Though there are events that are indeed legally questionable, there are also factors that appear relatively innocuous, legal and constitutionally appropriate, but that nonetheless contribute to a pattern of democratic decay.
Concern for the state of democracy in Malta is not novel. The Economist Intelligence Unit’s annual Democracy Index downgraded Malta to a “flawed democracy” in Spring 2020, “slippage [that] is linked to the political crisis surrounding the assassination of Daphne Caruana Galizia”. What is more, “the actions of international actors … [is] an additional signal that democratic decay is occurring”. This is significant with regards to Malta. Since 2017, the Council of Europe’s European Commission for Democracy through Law (‘Venice Commission’) and institutions of the European Union have visited Malta to investigate the strength of democracy and the state of the rule of law. In subsequent speeches and reports, both have placed focus on allegations of corruption, the assassination of Caruana Galizia and the need for constitutional reform. Indeed, on the strength of proposals outlined by the Venice Commission in December 2018, reforms to certain features of the Maltese Constitution were introduced in July 2020. These are discussed below. For now, this post examines in more detail some of the factors that have contributed to democratic decay in Malta.
Separation of Powers
The Maltese system of government adheres to a weak separation of powers, in some respects akin to the UK system upon which it is based. Malta is a parliamentary democracy, though the small Parliament and the lack of an upper chamber mean opportunity for Government scrutiny within Parliament is limited, enabling “the Prime Minister to exercise greater power through enforcing party discipline on parliamentarians”. The concentration of Government power is ensured in other respects, too. Under the Constitution, the Prime Minister has historically had the power to appoint judges, magistrates, the Attorney General, and the Police Commissioner (albeit with formal appointment being made by the President). Though a Judicial Appointments Committee added balance to the process in 2016, discretion still lies with the Prime Minister who can “exercise his political patronage to appoint whomever he wants, with no proper evaluation by an independent committee”. Indeed, the Prime Minister has the power to overrule the Committee. Though the weak separation of authority is not of itself indicative of decay, the potential for abuse raised by the concentration of power in the hands of the Government is problematic. In recent years, for example, those closely associated with the Prime Minister have been appointed to public office. In 2019, a magistrate was appointed by Prime Minister Muscat who was the daughter-in-law of “the government's representative on the Commission for the Administration of Justice (CAJ) … the Prime Minister's personal lawyer … [and] the Labour Party's main legal advisor”. Another consequence of the weak separation of powers is that the Government has ostensible control over those ultimately responsible for prosecution. In Malta, “[t]he task of ... prosecution is … split between the Police and the AG”, with the Police Commissioner and the Attorney General both historically appointed by the Prime Minister. That the legal advisor to the Government also has a prosecutorial function is also "problematic from the viewpoint of the principle of democratic checks and balances and the separation of powers”. The Attorney General might be faced with a difficult decision if Government figures become liable to prosecution and their decisions have historically not been subject to judicial review. This is particularly pertinent in the context of allegations of Government corruption and the assassination of Caruana Galizia.
Concerns for the separation of power, then, are relevant to the state of the Maltese democracy. It is notable, though, that in July 2020, and after severe criticism from the ‘Venice Commission’, a constitutional amendment was passed, removing the executive’s no role in the appointment of judges. A Judicial Appointments Committee, in which the judiciary has a majority of members, will propose three candidates, one of whom will then be chosen by the President according to his own deliberate judgment. The Chief Justice is now appointed by a Resolution supported by two thirds of all the members of Parliament. The strength of these reforms is discussed below. They potentially signify, though, an attempt to correct some of the problematic features of Malta’s constitutional system.
Anti-corruption mechanisms
“Deep corruption patterns have been unveiled [in Malta] and have raised a strong public demand for a significantly strengthened capacity to tackle corruption and wider rule of law reforms”. Prior to July 2020, however, mechanisms in place to tackle allegations of corruption were problematic, with the Government afforded a considerable role in the process. The Permanent Commission Against Corruption, for instance, created to investigate allegations of corruption, previously consisted of members who were appointed by the Prime Minister and it reported to the Minister of Justice. That key members within the Government could play such a crucial role in the work of the Commission potentially compromised efforts to investigate alleged corruption. This blurring of responsibility affected the public perception of corruption and the effectiveness of anti-corruption mechanisms. Substantiating this claim, “[a]ccording to the special Eurobarometer 470 on corruption published in December 2017 … 79% [of Maltese respondents] see corruption as widespread in Malta”. Connected with concerns for the composition of the Permanent Commission Against Corruption is the reality that, in its 30 years in operation, it has been labelled as ineffective and as failing “to successfully execute its mandate”. These concerns are interesting when seen in the context of efforts to address aforementioned allegations of corruption in Malta where a “track record of securing convictions in high-level corruption cases is lacking … [and] it remains unclear whether the relevant investigative processes have been initiated”. Allegations - and the perception - of corruption in Malta, combined with the problematic process designed to tackle it, present serious questions regarding the rule of law in Malta, particularly in the context of recent political events outlined above. In view of these questions, and following the aforementioned Venice Commission Report, the law has been amended so that the Chairman of the Permanent Commission Against Corruption is now appointed by a resolution supported by at least two thirds of all members of Parliament. These reforms, discussed below, indicate a potential correction of Malta’s approach to anti-corruption.
Free speech and the press
Some of the factors contributing to democratic decay in Malta thus far examined stem from constitutional provisions that have been in place for years. Some have been open to abuse, others are criticised for the manner in which they concentrate power within a Government that is subject to weak institutional checks. Concern for these factors, though, has become particularly prominent in the aftermath of the assassination of Daphne Caruana Galizia. It is the assassination itself, though, that is the most significant contributory factor to the decay of democratic values in Malta.
The Constitution of Malta makes clear provision for free speech, including the freedom both of the press to publish information and of the people to receive such information. (Though there is concern that the Government might be said to control “the broadcast of news”). These values are central to any conception of free democracy and the rule of law so that “the uninhibited exercise of governmental power” can be appropriately constrained (Craig, 1997). In this context, the assassination of Daphne Caruana Galizia, amid her myriad investigations into alleged Government corruption, is a breach of established constitutional rights, an affront to the rule of law and a fundamental betrayal of the democratic principles upon which the Maltese system is based. It is in this way that Caruana Galizia’s death is seen as a stark indicator of democratic decay in Malta. “The assassination of the Maltese journalist was … an attack on the freedom of the press in Europe given that Caruana Galizia was murdered for revealing scandals about members in the Government. A spokesperson said that the European Commission is working to make it safe for any journalist to work in Europe. He added that ‘if journalists are silenced, so is democracy’”.
Constitutional reforms and democratic renewal
This post includes in its title the hope that Malta’s democracy is engaged in a process of renewal. This hope is founded on the reality that, in July 2020, constitutional reforms were introduced that saw an attempt at rebalancing certain powers within the Maltese constitutional order, as this post has already made clear. Significantly, the government can now no longer exercise discretion in the appointment of judges, with appointment now by the President on the advice of the Judicial Appointments Committee. Reforms also provide that the President of Malta will be appointed (and potentially removed) by a two-thirds majority of the House of Representatives, not a simple majority as was previously the case; and the Chief Justice, the Ombudsman and the Chairman of the Permanent Commission Against Corruption are now also appointed by a two-thirds majority. Furthermore, and crucially, where the Attorney General decides not to prosecute cases of suspected corruption, they can be subject to judicial review by inter alia the Permanent Commission Against Corruption.
These various reforms were a result of proposals offered by the Venice Commission in 2018 and they serve to limit Government power in the appointment of certain key figures and in anti-corruption processes. In this way, the reforms might be seen as a step towards democratic repair and renewal, demonstrating intention to reduce the power of the Government and to give greater credence to the rule of law and the value of democracy. The reforms, though, are not without their problems. The opinion of the Venice Commission was not sought before the reforms were enacted; “Malta’s active civil society was kept entirely in the dark”; even “most MPs had not even seen the final texts … [before] they were told to vote for them”.
“Constitutional reform is … an occasion of historical significance, with profound and lasting consequences for the whole country. High levels of transparency and public engagement are required to ensure true … democratic legitimacy and popular acceptance. Unfortunately, neither requirement has been met”.
What is more, Pieter Omtzigt - the Council of Europe’s rapporteur on the rule of law in Malta - voices concern that many of the Venice Commission’s proposals remain so far unadopted, making the process of reform “incomplete”. These include recommendations that the Attorney General be solely responsible for prosecutions; that Parliament’s ability to scrutinise the Government be strengthened and that the process of magisterial inquiry be streamlined.
Concluding remarks
These concerns with what seem, at first glance, promising reforms, suggest that repair of Malta’s democracy is incomplete. Moreover, shortcomings in the Maltese system - both before and after the July 2020 reforms - mean that full investigation into alleged corruption is compromised and unfinished. “[U]ntil the criminal investigations reach credible conclusions and suspects are vigorously prosecuted, impunity will continue to reign in Malta”. Much has contributed to suggestions that Malta has endured a period of democratic decay in recent years and there are issues that this post has not been able to discuss, including the Constitutional Court’s tendency to defer to Parliament on questions of validity of laws. Attempt at reform is to be very much welcomed, but unless reforms address fully the system’s flaws, democratic renewal remains unattainable. There is hope, but more is needed.
Dr. John Stanton is a Senior Lecturer in Law at City, University of London. He also holds a visiting post at the University of Malta. John specialises in UK Constitutional Law with a focus on localism and devolution. He is currently putting the finishing touches to a book, Law, Localism and the Constitution, which will be published by Routledge in 2021. John also has a growing interest in Comparative Constitutional Law and an expertise on the Constitution of Malta, on which he has also published.