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OPINION 27 maltatoday | SUNDAY • 23 DECEMBER 2018 The Venice Commission report is flawed Joe Brincat Joe Brincat is an advocate and former Labour Deputy Leader THE Council of Europe's Venice Commission has stated that while Malta follows the UK system of government, it is not the same story because of the size of the two coun- tries. "Especially with regard to smaller jurisdictions, it must be acknowledged that govern- ance models that work in larger jurisdictions may not always be realistic within the context of a smaller island". It is dictatorial to make such a statement. But I am not surprised. When I was in the Council of Europe for 17 years, that was the feeling: that size matters. That point was made clear to me by Giuseppe Vedovato who eventually be- came President of the Council. The reverse argument should apply: the experts from the bigger countries cannot advise on the smaller islands, as their models are not congruous. While admitting that under the British Constitution the Prime Minister has extensive powers, the Commission states that Malta does not have a sec- ond chamber to review legisla- tion. It had to admit that New Zealand and Cyprus, which follow the British tradition, also do not have a second chamber. If we cannot have a hereditary title to the second chamber, then it has to be by appoint- ment: and who will appoint it and on what criteria? What if the second chamber is elective? Would they have no party tag? We did not allow local coun- cils to be apolitical, let alone a second chamber. In which case, the powers of the Prime Minister would be greater. From what I remember, at the turn of the 20th century, the powers of the House of Lords were curtailed, and that process has been going on even in this century. The Commission is critical of the power of the Prime Minis- ter to suggest to the President of the Republic the name of a person to be appointed a judge, or a Chief Justice. There is sense to advertising vacancies through competitive examina- tions for "magistrate" in the Italian case, which is not the case in Malta or the UK. But what about the UK? The power to appoint judges of the High Court, and of the Supreme Court is vested in the Lord Chancellor – a politician of standing in the Cabinet: "High Court judges are selected by the Lord Chancellor." It is unbe- lievable that what is perfect for the UK is dangerous in a Medi- terranean climate. And even in the selection of other judges (such as circuit judges) the Lord Chancellor may send back and reject any recommendation. So what is the big lesson we have to learn from the British standard? Judicial discipline I have no problem if the mat- ter of dismissal of a judge is taken away from parliamentary control and a new independ- ent system is established with a right of appeal. But there was never a case of actual dismissal of a judge or magistrate. In two known cases there were resignations before proceedings in court. The present system of a two-thirds majority is equivalent to a vote to change entrenched provisions of the Constitution. So the Venice Commission should also have considered the realistic likeli- hood of any one party attain- ing such a majority to carry out such changes without the need for wider parliamentary support. The Office of the Attorney General As expected there is the criti- cism that the Attorney General as advisor to the government should not be the final author- ity in prosecutions. That would have been understandable if there had been an Italian making such comments. But it is rather authoritarian for a British and a Cypriot to make such a statement. Art 112 and 113 of the Cypriot Constitu- tion specifically gives such dual powers to their Attorney General. This is no surprise, as through the amendments by the UK Parliament in 1985, when the Director of Public Prosecutions was set up, it was not severed from the control of the UK Attorney General. The power of nolle prosequi still rests with the Attorney General who is the supreme adviser of the government, and is actually a minister, the present incum- bent being Geoffrey Cox, a conservative with his tenure of office, until there is a change of government or is kicked out by Theresa May. Do what they say – not what they do. And there was also a Dutch expert. See the position in his country: "The minister has the legal power to intervene in an individual case, by issuing a directive to the Public Prosecu- tion Service. If the minister orders the prosecution service to prosecute a particular case, it has to be in writing so the court will be informed of the direc- tive. If the minister orders the prosecution service to abstain from prosecuting a case, parlia- ment will always be informed." If we want to be honest, in Malta an Attorney General would have his personal choice of area of activity. I remember Edgar Mizzi, who took upon him almost all legal matters and legislation, while Prof. Victor Borg Costanzi was essentially a prosecutor. Judgments of the Constitutional Court It is true that judgments of the Constitutional Court should have meaning. We have fol- lowed the English principle of the supremacy of Parliament, so the Constitutional Court has to notify Parliament to repeal or amend a law. What is being suggested, requiring an amend- ment to the Constitution, is that the judgment declaring a law invalid or part of it, should be effective on the strength of the judgment itself. This is similar to the Italian system. It is certainly not the Dutch sys- tem, the Constitution of which debars any court from declaring any law unconstitutional. The Commission suggests that there could be a time- frame to give time to Parlia- ment to legislate. Fair enough. What I do not relish is that the composition of the Constitu- tional Court remains as it is. It is practically the Court of Appeal. It would make more sense to have at least a court of five members, the Chief Justice and four others being chosen by lot. Certainly, we cannot have conflicting judgments from the Constitutional Court. This has been a recurring experience. The Presidency Here again the Commission points fingers at the Maltese system, while neglecting to examine what happens back home in most countries. Only Cyprus and France have a pres- ident elected by popular vote. Otherwise, all heads of state, including the monarchs, are mainly ceremonial. Whoever bothered much about the Ger- man President during the reign of Angela Merkel? Or about the monarch when Theresa May and Tony Blair were in power. The recent change of political government in Italy is a classic example. The President had to adapt, although publicly he makes generic exhortations. The Commission missed that we have a constitutional custom that when the head of state is elected, all show their respect. In many cases the vote is even unanimous in Parlia- ment. Woe the day if we were to introduce the farcical system of election by qualified major- ity, as the Italians have, when most presidents are elected by a simple majority. The Prime Minister A lot of fuss was made that about our Constitution saying that public appointments are made by the Prime Minister. When asked, the authorities answered that it does not mean that he personally makes all choices. It must be remem- bered that these provisions are still what they were in the Inde- pendence Order in Council of the 2nd September 1964, signed by W.G.Agnew. In other jurisdictions, ap- pointments are made by minis- ters, such as the Lord Chancel- lor, or the Minister of Justice in Germany regarding the Public Prosecutor. Who appoints the Comandante Generale dell'arma dei Carabinieri? The decree is from the President but as decided by the Minister of Defence and approved by Cabinet. The proposed solution is: "The Venice Commission is of the opinion that for the sake of legal certainty these powers should explicitly be attributed to the Government." The police I feel dizzy when I read in the report: "Therefore, in Malta, there should be a public com- petition for the post of Police Commissioner and the appoint- ing authority (Prime Minister or President) should be bound by the results of the evalua- tion of that competition, even though they might have a pow- er of veto against the candidate selected. This recommendation holds true even if the powers of prosecution were attributed to a DPP (see above)". Mention has already been made about the head of the Italian Carabinieri. In the UK, the Home Secretary advised the Queen to appoint Cressida Dick as Commissioner for the Metropolitan Police. The Cabi- net approved the appointment of Erik Akerboom as Commis- sioner of the Netherlands Po- lice. Akerboom was proposed by Minister of Security and Justice, Ard van der Steur. The Rapporteur should know this in his own country. In Cyprus the head of the Cabinet, that is the President, appoints the Chief of Police, without any competi- tion! The Commission missed that we have a constitutional custom that when the head of state is elected, all show their respect today