The European Union Commission will be publishing this year another useless report on the rule of law in Malta. It is useless because it is in large measure ignored by the Maltese government and the Commission takes no concrete, effective measures to ensure that in the following year, all not just one, part of one, or a handful of its recommendations are implemented. This report writing has become a farce. The Commission is spending a lot of money to produce these reports that have no concrete effect on the government of the day.

Unfortunately, bureaucracies tend to be complacent. Their own reports on the rule of law in Malta have spanned over several years so far and the end result is always the same: a rule of law deficit in Malta with a list of recommendations that are not fully implemented. I am sure that even if a Nationalist government comes to power, we will have the same result. For none of the two parliamentary political parties are really interested in observing the rule of law as that will reduce their clout over the people. This is, of course, unacceptable to them as in an autocracy they thrive, but in a real democracy, they end up disempowered.

Simply put, our leaders are not interested in safeguarding democracy, protecting human rights and fundamental freedoms, augmenting transparency in government, implementing freedom of information, accountability, good governance, good administration, respect for the Constitution, enlarging the parliamentary rights of the opposition, assiduously respecting freedom of expression, empowering the media to carry out their valuable investigative journalism function without being hampered from accessing government held information or even physically beaten or verbally attacked when doing so. These, and other democratic deficits, highlighted in several reports by the EU Commission, GRECO, the Venice Commission, Transparency International, FATF, OECD, credit rating agencies, the Parliamentary Assembly of the Council of Europe, the EU Parliament, and others all depict a bleak picture for Malta in so far as the rule of law situation is concerned.

It is not the purpose of this piece to illustrate all the various instances where a democratic deficit exists in Malta as that would require not one article but a series of articles to do so. And, after all, if one reads all these international and European organisations' reports and the local media, the inevitable conclusion is that both political parties represented in parliament - since 1964 to date - have made, and purposefully continue to do, a mess of the rule of law.

Of course, the government will retort by churning a whole list of laws that have been enacted under a Labour government that have considerably advanced the rule of law in Malta. Even the Opposition will dish out its own list of rule of law enriching legislation when it was last in government. But for each rule of law enriching legislation, parliament enacts other multiple measures to continue to augment the autocratic style of government. This is what in legislative drafting is referred to as a clawback provision. With one hand, the government gives you something; with the other hand, it takes it back. In other words, the government in parliament, without or even with the complicity and connivance of the parliamentary opposition, bestows upon the people one rule of law enhancement, on the one hand; but, in another measure or other measures, it takes back - normally more than it has given, other rule of law enhancements that existed in the past but now have, by legislative or administrated measure, been repealed or erased.

We all know for what our legislatures and governments stand for in the realm of the rule of law. We really do not need international and European institutions to tell us that there is a democratic deficit in Malta but sometimes it is good to state the obvious. Nevertheless, what surprises me most is the uselessness, ineffectiveness, and irrelevance of these institutions when they report on the rule of law in Malta. For their reports are not followed up by effective and concrete action. Now I do understand that not all of the international and European institutions have the power to enforce their rule of law standards on Malta.

But the EU Commission is not one of these. Absolute credit, nevertheless, must be given to the FATF for when it reported on the rule of law deficit in Malta, it did not stand there staring in the face, not knowing what really hit it - like the EU Commission does - waiting for another year to pass by to pen another report critical of the government. The FATF called a spade a spade and took immediate action; this prompt decision sent shivers down government's spine that had no other option but to act as fast as it could to be delisted from the FATF grey list.

The EU Commission, through its own volition, is very much in the same situation as the United Nations Security Council that is held hostage by its five permanent members who singularly have a right to veto any peace-loving measure that the Council attempts to adopt. Hence, the Security Council can take no action against the war of aggression in Ukraine because of the Russian veto or the genocide of the Gazans in Israel because of the American veto.

Whilst EU Commission reports are well written, factual, thoroughly researched, contain valid recommendations, they remain ineffective as there is no punch in them, 'punch' being used here metaphorically, not literally. So why does the Commission spend all that money to produce all those reports that enjoy minimal implementation? Of course, it can be argued that there can be other implications that arise from these reports such as naming and shaming a country, morally embarrassing a state, reputational harm, etc. But when dealing with a government that has no shame, has no problem with losing its reputation internationally, and has lost its moral compass, the question remains: what effect will these reports have on Malta? The reply is obvious: miniscule. One recommendation here and there is implemented albeit for the sake of tokenism, having doing something even though not really convinced of that course of action. But at least it gets the Commission off the government's back for another year, and throws back the ball to the Commission's court.

When the government addresses partially or a handful of the report's recommendations so that the Commission can tick the box or boxes that the government of Malta is in compliance with its report recommendations, albeit partially, and minisculely, it can claim victory in its subsequent report, open the champagne bottle, and all lived happily ever after in Brussels ... at least until the next report is published. But in reality the government would be the end winner for if it partially implements one recommendation out of twenty and implements fully another out of twenty, all the jubilation in Brussels would be nothing but a pyrrhic victory, for government knows that through its clawback policy, it would have lost one and a half measures but would gain another five or ten misrule of law new ones in that year or the following one before another report is published. Each year the Commission reports that it has discovered other rule of law deficiencies for the following year's report and this keeps the EU bureaucracy functioning and content with itself. Or should I say malfunctioning in so far as the rule of law in Malta is concerned?

Now let me make it clear. The rule of law is not only a Maltese constitutional value - albeit accepted only through lip service by our political class. It is also part of EU Law. But whilst the EU Commission has no qualms to take action against other EU member states on their rule of law infringements, there appears to be a hidden agenda in Brussels in relation to the rule of law deficit in Malta. One therefore asks: why is there no level playing field in rule of law enforcement action by the EU Commission? Why is Malta treated with kids gloves for its infringements? Why does the Commission fall like a ton of bricks on other EU member states but not on Malta? How consistent is the Commission when dealing with rule of law infringements by EU member states? Indeed, I have not come across one single report on the basis of which the Commission has taken concrete and effective measures against Malta. The FATF, on the contrary, through timely and decisive action, has made the Commission blush. The Commission's approach is to let sleeping dogs lie in Malta even if that means abstaining from exercising its duty in terms of the EU law to safeguard the rule of law in member states. Perhaps, it is not amiss at this juncture to remind what Article 2 of the Treaty on European Union states:

'The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail'.

I did protest to the EU Commission on its lack of enforcement action and here below is the reply I received from the bureaucracy:

"Thank you for your e-mail of 14 February 2025 expressing concern about recent developments relating to the rule of law in Malta. Your letter has been transmitted to me for a reply.

Respect for the rule of law, including an effective fight against corruption, is a clear priority for the European Commission, reinforced in the Political Guidelines 2024-2029.

Let me reassure that the Commission closely monitors the evolution of the situation affecting the Rule of Law in all Member States, including Malta. The 2024 Rule of Law Report, adopted on 24 July 2024, covers key developments in all the Member States as regards justice systems, anti-corruption frameworks, media pluralism and media freedom, and other institutional issues relating to checks and balances. Finally, the Rule of Law Report includes recommendations for all Member States, including for Malta. Please note that the 2025 cycle for the next Rule of Law Report is under way. This included a targeted online consultation inviting authorities and stakeholders across the EU to contribute and report on significant developments. The input received is being supplemented by exchanges with all relevant stakeholders during virtual country visits, which are taking place between February and April 2025".

My query was in relation to concrete and effective enforcement action to be taken in relation to the EU Commission rule of law reports. Yet I received no reply thereto!

Kevin Aquilina is Professor of Law, at the Faculty of Laws of the University of Malta