The Council of Europe’s Venice Commission, a body of independent experts in constitutional law, published its damning report on Malta’s rule of law on 17 December. The report raised a number of major concerns on the rule of law in Malta, with legal experts concluding that Malta is not a functioning democracy.

A former judge at the European Court of Human Rights, Giovanni Bonello, told Newsbook that the report is “excellent, balanced and, in the Maltese scenario, overdue”. Yet this did not stop the government and Labour Party clouding the very serious shortcomings the report outlines.

The request for a Venice Commission report

The Council of Europe’s Legal Affairs and Human Rights Committee held a public hearing on Daphne Caruana Galizia’s assassination and the rule of law in Malta on 8 October, where Pieter Omtzigt, a Dutch MP and the Council’s special rapporteur on Caruana Galizia’s case, requested that the Venice Commission provides an analysis of Malta’s rule of law.

It took justice minister Owen Bonnici, currently defending himself in a constitutional case brought by activists who argue Bonnici is denying their right to peaceful protest, five days to respond.

Bonnici didn’t welcome the request from Omtzigt, but tried subverting it. He wrote a letter to the Venice Commission asking them to review Malta’s legal and institutional structures. Bonnici made no reference to the Council’s public hearing or to Omtzigt’s existing request that came five days earlier, casting his letter as evidence that the government is open to “bona-fide dialogue”.

The reality is Europe’s highest authority on the rule of law was already set to look into Malta. The best Bonnici could do was to pretend it was his idea. He was supported in this respect by Labour MPs like Glenn Bedingfield, who tweeted that the Venice Commission “accepted” Malta’s request to review its institutions when in fact it was already a done deal.

Omtzigt described Bonnici’s letter as “superfluous” and “spin”.

The Venice Commission in Malta

Soon after Omtzigt’s request to the Venice Commission was accepted, the Commission arrived in Malta for meetings for government officials, MPs, and civil society.

Labour MP Edward Zammit Lewis, who once took over Celine Dion’s lyrics to express his love for Joseph Muscat on social media, tweeted a photo of himself and Labour MP Byron Camilleri at a Venice Commission meeting.

Zammit Lewis described the meeting as “productive and cordial” and that he and Camilleri “outlined #Malta governments [sic] enhancements and legislation to [its] institutional strudcture [sic]”, tagging Joseph Muscat.

Zammit Lewis was deploying the now standard government tactic of providing positive and false real-time commentary on meetings with supra-national authorities to diminish the seriousness of having them monitor Malta’s institutions and government.

Labour MP Rosianne Cutajar used the same tactic on 1 June when she tweeted about an “[i]nformative meeting with MEPs @AnaGomesMEP & @sven_giegold” where she and fellow Labour MPs Stefan Zrinzo Azzopardi, Zammit Lewis, and Clayton Bartolo, “clarified a number of inaccuracies & explained how @MaltaGov has strengthened the Rule of Law in #Malta.”

That same day, the MEPs called a press conference where they said their concerns with Malta’s rule of law where “even stronger” following their meetings with the MPs, setting Cutajar off in the Twitter rage where she criticised the Portuguese MEP Ana Gomes by way of the country’s so-far inconclusive investigation into Madeleine McCann.

@AnaGomesMEP in Malta investigations have led 2 d arrest of 3 suspects in under 6 months& prosecution is underway. I love Portugal but if u want to make comparisons, could u tell us how many people were prosecuted so far regarding the abduction of Madeleine McCann? (11 YEARS ago) pic.twitter.com/X5iNBYWI1D

— Rosianne Cutajar (@RosianneCutajar) June 2, 2018

We now know that the Venice Commission meetings where not, in the way that Zammit Lewis understands the words, productive or cordial, given the damning report and, as noticed by digital sleuths, the heavily negotiated text.

A finding of the Attorney General’s dual role as public prosecutor and legal advisor to the government was switched from “inappropriate” to “problematic.”

Going through the just published Venice Commission report for #Malta. You realise just how heavily negotiated the text was to make its recommendations more diplomatic just from para 56 on the useless AG’s role where track changes were accidentally left in. https://t.co/CwelD0ksrb pic.twitter.com/9gdev1hzJz

— BugM (@bugdavem) December 17, 2018

“Longstanding and inherited”

The image of openness and Bonnici’s “bona-fide dialogue” quickly faded upon the report’s publication.

Joseph Muscat said the report made no mention on the reforms implemented by his government. Yet it did. The report looked at judicial appointments, one of the main pillars of rule of law, in depth.

The report found that the Judicial Appointments Committee (JAC), a reform Bonnici implemented and likes to celebrate when under fire, “is in principle a welcome step, as compared to the situation before 2016, [but] its composition is not in conformity with European standards”.

The @coe #CouncilofEurope #VeniceCommission @VeniceComm #Malta 🇲🇹 #RuleofLaw recommendations mainly focus on laws and systems which are longstanding and were inherited by @MaltaGov – confirmation that recent reforms embarked upon deemed positive & step in right direction 🏛️ pic.twitter.com/kkkN43DHJw

— Government of Malta 🇲🇹 (@MaltaGov) December 18, 2018

The report took particular issue with the Prime Minister’s power to overrule the JAC, and the government’s defence of that power – that it’s “necessary to combat discrimination on the basis of sexual orientation” – the government’s most absurd use of pinkwashing yet.

Muscat’s line was part of the government’s strategy to cast the report’s findings as limited to “laws and systems which are longstanding and were inherited by @MaltaGov – confirmation that recent reforms embarked upon deemed positive and step in right direction”.

Government spin doctors then spread the line that Malta’s Constitution dates “back to 1964 (which was given to Malta by the UK)”. In fact, Malta’s Constitution was revised 31 times since independence in 1964 – seven times alone during Muscat’s tenure as Prime Minister.

There is, in fact, no constitutional continuity since 1964. Malta’s Constitution was effectively suspended under Labour Prime Minister Dom Mintoff in 1974, the year Malta shifted from a monarchy to a republic, in order to amend it without following legal procedure. 1974 marks a break in the country’s constitutional history.

A selective interpretation

The Prime Minister, playing to an international audience, said that his government “generally agrees” with the report. Government officials said that they will implement “most” of the report’s recommendations.

It is unclear what the government means by “most”, but there are two major areas that it has completely ignored in all its PR since the report’s publication.

First, the government and Labour Party has ignored several paragraphs in the report that address the assassination of Daphne Caruana Galizia.

Echoing the expert legal opinions by leading human rights lawyers, the report finds that “it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk” to Caruana Galizia’s life and whether they failed to take measures to safeguard her life. The report relies, like the expert legal opinions, on a large body of Article 2 – the right to life – case law.

The only way in which this can be established is through an independent public inquiry. Under Maltese law, it is only the Prime Minister who can call such a public inquiry and, over a year from Caruana Galizia’s assassination, he has refused.

Caruana Galizia’s family expects to litigate the call for a public inquiry.

The government has also completely ignored the report’s entire section on Malta’s media and civil society, and the state’s obligation to protect them.

“The media and civil society are essential for democracy in any State. Their role as watchdogs is an indispensable precondition for the accountability of government… Even when it is stressful for the authorities to endure their criticism, the latter have a duty to ensure that the media and civil society can freely express themselves,” the report states.