‘The government is deliberately acting in bad faith’ – law professor

Law professor Kevin Aquilina agrees with the Council of Europe’s Special Rapporteur Pieter Omtzigt that the Bill to establish the Office of the State Advocate, currently being debated in Parliament, falls short of the requirements by the Venice Commission.

Aquilina, the former Dean of the University of Malta’s Faculty of Laws, goes even further, saying the proposed law was “half-baked and ill-conceived, and has been drafted hastily, shabbily, superficially, and without enough thought and research put into it”.

In his criticism of the Bill published in the Law Students’ online journal, Aquilina says there is “a constitutional rule of law crisis in Malta”.

He stresses the government is “deliberately acting in bad faith” by presenting the Bill as the government’s intention to implement the Venice Commission’s recommendations when in fact it is turning the report “on its head”.

“Notwithstanding its apparent pious intentions, the Bill… has conceptual flaws. It is shabbily drafted. It is a parody of the December 2018 Venice Commission’s Report. It flies in the face of established constitutional doctrines. It is legislative drafting mediocrity at its best. In sum, it is yet another classic example of how legislation should never be drafted,” said Aquilina, who is now Head of the Department of Media, Communications and Technology.

As the Bill was going through its second reading in Parliament on Tuesday, Omtzigt took to social media to make a statement that the Bill fell short of the Venice Commission requirements. “The government of Malta and/or the parliament of Malta are advised to consult the Venice Commission and GRECO on its formulation, implementation and completion by other measures,” he added.

The government of Malta and/or the parliament of Malta are adviced to consult the Venice Commission and GRECO on its formulation, implementation and completion by other measures

— Pieter Omtzigt (@PieterOmtzigt) June 11, 2019

Aquilina lists the reasons why the proposed Bill runs counter to the doctrines of the separation of powers and the rule of law. He points out that the proposed law would serve to concentrate more powers in the Office of the Prime Minister, “very much in the opposite direction of what the Venice Commission noted”.

“The only legitimate conclusion that one can arrive at is that the government is deliberately acting in bad faith,” he says.

In a strong appeal against its adoption, Aquilina says the Bill is in breach of Malta’s international obligations and places the country at loggerheads with the Council of Europe, the European Court of Human Rights and the European Union.

“The government seems to have no difficulty with breaching the rule of law,” Aquilina adds.

Aquilina warns that the Attorney General will continue to be prosecutor in addition to being Chair of the Financial Intelligence Analysis Unit (FIAU). He will remain a member of the Judicial Appointments Committee, as well as the Commission for the Administration of Justice through which the Attorney General is involved in the hearing and decision of appeals from decisions of the Judicial Disciplinary Committee – a situation Aquilina describes as “constitutional conflicts of interest galore”.

He ridicules the need for six different appointment committees (the proposed Bill adds another two committees to the existing four), having no uniformity, consistency and coherency in the appointment procedure.

“Perhaps the government is of the view that by appointing these separate appointment committees, it can influence their recommendations to obtain an outcome favourable to it?” he asks.

Aquilina was also highly critical of the government’s “contemptuous treatment” of the Constitution.

“Government is purposefully dragging its feet to implement the Venice Commission report and, five months after the publication of this report, it has attempted to address only one topic – quite deficiently… This does not augur well for the respect of the rule of law in Malta. Indeed, there is a constitutional rule of law crisis”.