Requested by: Council of Europe, Parliamentary Assembly, Committee on Legal Affairs and Human Rights

Recommended Measures:
1. Judicial vacancies should be announced, an enlarged Judicial Appointments Committee should vet and rank the applicants, including for the position of Chief Justice, and the JAC should propose candidates directly to the President of Malta for appointment. Dismissals of judges and magistrates should not be made by Parliament. The judgments of the Constitutional Court finding legal provisions unconstitutional should have erga omnes force. 2. An independent Director of Public Prosecutions (DPP) with security of tenure should be established, who takes over prosecuting powers and the corresponding staff from the Attorney General, and the Police. Magisterial inquests should be absorbed into this function. The decisions of this DPP, notably not to prosecute, should be subject to judicial review. 3. The position of the President should be strengthened by attributing to him or her powers to act without the advice of the Prime Minister and possibly by electing the President by qualified majority. It should be possible to remove the President by a qualified majority only. 4. Parliament should be strengthened by tightening rules on conflicts of incompatibility notably as concerns appointments of MPs to Officially Appointed Bodies. MPs should benefit from non-partisan information to perform their controlling function (increase of research staff or establishment of a senior consultative body). This should be accompanied by an increase of MPs’ salaries allowing them to focus on parliamentary work.

Measures taken: The Prime Minister of Malta publicly stated that the recommendations of the Opinion would be fully implemented. A committee on constitutional reform was established under the Chairmanship of the President of Malta in order to examine the recommendations made in the Opinion. Several judicial appointments were made since the adoption of the Opinion. As a measure to implement the Opinion’s recommendation to concentrate the powers of prosecution (currently shared between the Police and the Attorney General - AG) in an independent Director of Public Prosecutions and to separate the functions of prosecution and legal advisor of the AG, the Minister of Justice presented a bill (adopted in July 2019) that would shift the AG’s advisory powers to a new State Advocate. The question whether prosecution would be sufficiently independent was discussed in Malta. Referring to the Opinion, on 26 June 2019 the Parliamentary Assembly of the Council of Europe adopted Resolution 2293(2019) on “Daphne Caruana Galizia’s assassination and the rule of law in Malta and beyond: ensuring that the whole truth emerges”. The Maltese Government prepared proposals for legislative changes to implement recommendations of the Opinion. These proposals are the subject of opinion 986/2020. On 20 April 2021, the European Court of Justice adopted its Judgment in Case C-896/19 Repubblika v Il-Prim Ministru. The Court came to the conclusion that national provisions of a Member State which confer on the Prime Minister a decisive power in the appointment of members of the judiciary, while providing for the involvement of an independent body responsible for assessing candidates and providing an opinion, are not contrary to EU law. However, the Member States are required to refrain from adopting rules which would undermine the independence of the judiciary (non-regression). On 29 April 2021, the European Parliament adopted a resolution on the assassination of Daphne Caruana Galizia and the rule of law in Malta (P9_TA(2021)0148). That Resolution noted that following the implementation of some of the recommendations of the Commission, the Council of Europe and the Venice Commission, the Government of Malta made progress in relation to the rule of law and called on the Maltese authorities to fully implement all outstanding recommendations by the Parliamentary Assembly of the Council of Europe, the Venice Commission, GRECO and Moneyval. The Resolution specifically referred to recommendations concerning the national Parliament and MPs, the effect of Constitutional Court judgments and the specialised tribunals. The Resolution also called upon the Maltese authorities to request the Venice Commission’s opinion on compliance with its recommendations and reserved the right of the European Parliament to make such a request itself.