Checks and balances? Peter Omtzigt’s report on the situation in Malta

By Renata Rat – 25.06.2019

Special Rapporteur Pieter Omtzigt’s report on the rule of law in Malta is damning. Prompted by the 2017 car bomb assassination of investigative journalist Daphne Caruana Galizia, it finds serious deficiencies.
The report is being presented at the Parliamentary Assembly of the Council of Europe on 26. June 2019. Media freedom organisations including the European Centre for Press and Media Freedom are holding a side event as the Assembly in Strasbourg. They demand justice for the slain journalist and an answer to the question: who ordered her murder?

It’s been almost two years, so it’s important to remember all the hurdles that have been placed in the path of truth and justice for Daphne’s family and the wider community in Malta and beyond.

The background to the Omtzigt Report

October 16, 2017: A car bomb explodes and kills Maltese investigative journalist Daphne Caruana Galizia. Daphne was one of Malta’s most famous journalists and did significant investigations on corruption and abuse of power among Maltese politicians and public officials. The public outcry around Europe was enormous. Nevertheless, on 19 January 2018 – three months after the brutal assassination –  the Partner Organisations of the Council of Europe’s Platform to promote the safety of journalists issued a statement in which they noted that it does not seem like the Maltese authorities have identified the people responsible for the murder. A report found that there are many inconsistencies regarding Malta’s system of checks and balances and an independent judiciary.

After that, the Parliamentary Assembly of the Council of Europe (PACE) appointed Dutch MP Pieter Omtzigt as a Special Rapporteur of on the assassination of Daphne Caruana Galizia to monitor the ongoing investigations in Malta. It was the first time that the international body appointed a special rapporteur for such a task in the EU. In October 2018, he visited Malta and met with several high officials, among them Maltese Prime Minister Joseph Muscat, security authorities, representatives of civil society and journalists. His draft report, titled “Daphne Caruana Galizia’s assassination and the rule of law, in Malta and beyond: ensuring that the whole truth emerges” has been adopted by the Legal Affairs and Human Rights Committee of the Council of Europe on 29 May 2019 in Paris. It includes the recent conclusions of the European Commission for Democracy through Law (Venice Commission) and the Group of States against Corruption (GRECO). Ahead of the publication and adoption of the report, the ECPMF, together with other freedom of expression organisations, published an open letter addressing the Maltese PACE Members and to EU leaders meeting for a summit in Malta.

Regarding the checks and balances of Malta’s Constitution, many weaknesses can be identified, according to the draft report: The Prime Minister’s powers of appointment are described to be extensive. They include appointing ministers, judges and magistrates, the Attorney General, the Commissioner of Police, the Security Commissioner responsible for supervising the Maltese Security Service, the Data Protection Commissioner and members of the Electoral Commission – among others. In other words, the Maltese PM can appoint the most relevant authorities of a functioning democratic system. A system of checks and balances or better the separation of powers and the independence of the judiciary and law enforcement do not seem to be existent. On top of that, the current government brought additional areas of activities under its umbrella; among them the regulation and promotion of Malta’s gambling industry which contributes 12% of the country’s GDP and the “golden passport” investment schemes, which have been described as posing a high money-laundering risk.

Even officials in the civil service, Omtzigt points out, are appointed as “persons of trust” by the Prime Minister in arbitrary and irregular procedures. An over-extensive recourse to the appointment of “persons of trust” undermines the independence, quality, and integrity of Malta’s civil service. In a functioning democracy governed by the rule of law, the civil service should be politically impartial, provide independent advice to ministers and assure continuity across administrators.

Malta’s parliament ‘The House of Representatives’ only has one legislative chamber – this prevents the upper house from providing a check to the legislature’s decision-making process and gives the Prime Minister even more power, the Venice Commission notes.

Recalling the recent reports of the Venice Commission, the report also finds problems regarding the judiciary. The judicial appointments of the past years make one suspicious: the Prime Minister appointed a series of persons with close ties to his ruling Labour party. There is serious doubt – also from the European Court of Human Rights – whether the Maltese judiciary is entirely impartial when it comes to politically sensitive cases.

According to the report, another problematic position is one of the Attorney General: he is involved in both providing legal advice to the government and prosecuting criminal offenses. According to the report, the Venice Commission states that being an adviser to the government and prosecutor at the same time makes the office problematically powerful, which is a grave impediment when it comes to an investigation and prosecution of allegations of criminal conduct by politicians.

The report also finds many inconsistencies regarding the criminal justice system in Malta. There is widespread concern about the ability and effectiveness of the Maltese Police to investigate serious crimes, such as economic crimes and those involving prominent public figures. The police in Malta is not perceived to be politically neutral and in the service of the State – this is a problem for a democratic society.

The Financial Intelligence Analysis Unit (FIAU), the country’s specialist anti-money laundering body was part of various scandals, and the report describes how it has damaged its authority and reputation. Even the European Banking Authority (EBA) found that the FIAU violates EU anti-money laundering standards.

There are several law bodies whose existence might seem pleasing at first sight but get more problematic the closer one looks at them. The Freedom of Information Act from 2008 established the general principle that all government documents have to be accessible to the public upon request. However, it is restricted: it defines permitted grounds for the refusal of access, which leads to permanent denial of requests for official documents – transparency of the administration is not guaranteed. Moreover, the Protection of the Whistleblower Act is undermined by exceptions. The report points to a lack of protection for whistleblowers who report to the media and the fact that the reporting channel for external whistleblowers is the Cabinet Office.

Beyond that, the island has been facing many scandals in the past few years, including the Panama Papers revelations that concerned several senior government figures or so-called “golden passports” affair. Individuals involved in these scandals seem to enjoy impunity under the personal protection of Prime Minister Muscat – the report finds that this leads to the impression that the rule of law in the country is undermined by an extreme weakness of the system of checks and balances.

The report concludes that in the Maltese legislative and judiciary system, the Prime Minister is predominant. The other actors in the system of checks and balances are not sufficiently strong to contribute. Political support often prevails over the enforcement of the law and the general interest. Despite specific steps, the country still needs fundamental reforms – an establishment of adequate checks and balances is substantial.

In addition to that, the report sees a direct relevance between the weaknesses of the general and criminal justice system in particular and the authority’s response to the murder of Daphne Caruana Galizia. It lists a series of concerns relating the investigation of the murder, including magistrates and the investigating police officer being in a situation of conflict of interest and a police officer who accused of warning the suspects before their arrest. Despite claims that he had ties to the suspects, the police failed to interrogate Economy Minister Chris Cardona so far. In addition to that, the Minister of the Interior made false claims about the progress of the investigation.

The report draft calls on Malta to establish an independent public inquiry on the investigation within three months. The European Parliament supported the call for a public inquiry through a resolution. It requests the Maltese government to launch a public inquiry and calls on the EU institutions and the Member States to initiate an independent international public inquiry into the murder and the alleged cases of corruption, financial crimes, money laundering, fraud and tax evasion reported by the journalist. The Maltese government said that there is a list of “serious inaccuracies” in the report. So far, the government has not explicitly listed them.

During the summer session of the Assembly on 26 June, the representatives will debate on the rule of law in Malta and the assassination of Daphne. The ECPMF co-supports a side-event in Strasbourg at the Council of Europe.