Parliament has before it a significant proposal which will change the way in which agreements are reached for the appointment of the Standards Commissioner.

The “anti-deadlock mechanism” has been proposed by Prime Minister Robert Abela and was prompted by the disagreement over the appointment of retired Chief Justice Joseph Azzopardi to the post of Standards Commissioner to succeed George Hyzler, who left the post a year early to take up a role with the European Court of Auditors.

While it has not been discussed much, the measure is a significant one, particularly given the sensitivity of the post of Standards Commissioner.

It is not the first time that an anti-deadlock mechanism has been proposed, and Abela himself cited the Venice Commission as having proposed it.

But how does the proposal size up with what has been suggested in the past and with what has been suggested by the Venice Commission and others?

What is the Prime Minister proposing?

Abela has expressed frustration at the deadlock, claiming that the PN had initially agreed to Azzopardi’s appointment but later backtracked.  He forged ahead with the proposal anyway, despite knowing that it would not gather the necessary two-thirds majority for it to go through.

It is in this scenario that Abela proposed the anti-deadlock mechanism in question.

As part of this mechanism, the priority is that the Standards Commissioner is nominated with the support of both sides of the house, but in the event that the required majority is not reached, then the appointment is made using a simple majority.

The process would be such that a first vote – requiring a two-thirds majority – takes place in Parliament on the proposal.  If no such majority is reached, a week is allowed to pass before a second vote – also requiring a two-thirds majority – takes place, with the hope being that the parties can come to an agreement in that period.

If the majority is not obtained regardless, then a third vote will take place a week later, where only a simple majority is required for the nomination to be confirmed.

It is important to note that this amendment is to the Standards in Public Life Act, meaning that the change would only affect appointments for this post, and not other instances where a two-thirds majority is required.

Abela justified the mechanism by saying that it was what the Venice Commission had proposed, and that former PN leader Simon Busuttil himself had proposed it in a governance paper back in 2015.

What has the reaction been?

Truth be told, there has been little reaction to this proposed law so far.

A Nationalist Party statement the day after it was announced however showed that the PN was not best pleased with the idea.

“The PN considers the Prime Minister’s comments that he wants to change the law regulating how the standards commissioner is appointed as anti-democratic and irresponsible and only intended to destroy the institution of the standards commissioner,” the party said. “What Robert Abela wants to do is a serious threat to democracy and goes against the rule of law.”

Beyond that though, it appears that the bill has gotten somewhat forgotten as the airwaves and headlines have been dominated by another ongoing parliamentary debate, that concerning amendments to the Criminal Code to allow doctors to perform an abortion in cases where the prospective mother’s health is in grave risk.

Has the government proposed something similar in the past?

Yes, it has.

Back in 2020, when the government and opposition were discussing wholesale changes to Malta’s constitution – changes which require a two-thirds majority to pass – one of the changes on the cards was on how the President of the Republic was selected.

The government had proposed – upon the recommendation of the Council of Europe’s Venice Commission – that the President is appointed by a two-thirds majority, rather than a simple majority, but that an anti-deadlock mechanism would be put in place in the event of an impasse.

The proposed anti-deadlock mechanism was identical to what is being proposed today, and again the PN did not agree with it.

The PN back then through MP Chris Said had argued that the mechanism proposed by the government “defeats the whole purpose of these changes" and that “as legislators we must also cater for a scenario in which the government would try to abuse of its position.”

It was argued that both sides of the political divide had managed to agree on who should be President every time since 2009, so realistically there was no need for such an anti-deadlock mechanism.

The proposal was ultimately removed from the batch of proposed constitutional changes as a result of the disagreement.

What had the Venice Commission proposed?

The Venice Commission is a Council of Europe body which had made a raft of proposals and recommendations in order for Malta to improve its rule of law standing.

Amongst those was that certain significant posts should be appointed by Parliament with a two-thirds majority.

The post of President was one of them, and indeed the Venice Commission had said that an anti-deadlock mechanism in this appointment is necessary.

While the Commission had welcomed the proposal back then – which, again, is practically identical to today’s – as being an improvement, it had offered a suggestion that “decreasing the majority required from two thirds to a simple majority in one step might make it too easy for the majority to overcome this limitation. The decreasing majorities could be staggered.”

Another one was the Chief Justice, and while the current Chief Justice was appointed after an unprecedented agreement between the government and the opposition, the Venice Commission had expressed worry over what would happen if no such agreement could be reached.

In this sense, it suggested “that the Chief Justice be elected by the judges of the Supreme Court if there is a prolonged stalemate in Parliament for the election by a qualified majority in Parliament” as an anti-deadlock mechanism.

What had the Ombudsman proposed?

Amidst all of this, another man who was caught in the middle of an impasse was Anthony Mifsud.  He was Malta’s Ombudsman and held onto his post even though it expired in March 2021.  That’s because the government and opposition failed to agree on his successor.

He had a proposal for an anti-deadlock mechanism himself which has yet to be mentioned in the grand scheme of this discussion.

When there is a vacancy, or the term of office expires for one reason or other, Mifsud’s proposal was for the Speaker would issue a public call for a show of interest for those eligible and qualified to occupy the post.

The Speaker would then, confidentially, issue the responses he received from interested persons to the Select Committee that would be composed of two members from each side of the House of Parliament, presided over by someone who would have at some point occupied a constitutional role that had requires a Parliamentary resolution approved by a 2/3rds majority.

That committee would listen to the people who expressed interest and who would be, in its opinion, ideal to occupy the post. After this scrutiny, it would notify the Prime Minister and Opposition Leader with two names of those people, and if it is the case would indicate their order of preference. The Prime Minister and Opposition Leader would have a determined period in which they would consider what was submitted to them and reach agreement about the person who should be submitted for approval by Parliament. Their decision does not necessarily have to be in favour of one of the two people indicated to them by the committee.

The Prime Minister and Opposition leader would then have to, in a joint note, inform the Speaker of the House about their agreed decision, or that within the stipulated time it was not possible for them to reach agreement.

In the first instance, where agreement is found, the Speaker would issue a motion for approval from Parliament, that would eventually lead to the President formalising the appointment of the chosen person. In the second instance, if agreement between the Prime Minister and Opposition Leader was not found, the Speaker would tell the President that there was no agreement and consequently, the choice will be left in his hands to nominate someone who would be eligible and who, in his personal judgement, feels would be most ideal to occupy the post. For this aim, the Speaker would send the committee paperwork and all relevant documentation to the President.

When will the current anti-deadlock proposal be discussed?

Tough to say. 

Parliament’s agenda since this proposal was tabled has revolved around the criminal code amendment concerning abortion, meaning that there has been little discussion on the matter thus far.

The proposed amendment is listed on Parliament’s agenda as being at first reading stage, with a vote to be taken in the last sitting before Parliament rises for its Christmas recess. That sitting is tomorrow. 

There are still a number of parliamentary hurdles which the bill must get through to pass, but in theory the government doesn’t need to make any changes to it because only a simple majority is needed for it to be made law.

In the meantime though, Malta remains without a Standards Commissioner.