Last summer appears to have been a productive time for government to churn out ill-thought bills. On two previous occasions, I commented on the bill proposing to establish the Human Rights Commission that was defeated on third reading in the House of Representatives. As that Bill amended the Constitution, at least a two-thirds majority vote was required. The Opposition abstained from participating in the vote, in solidarity with more than 30 NGOs objecting that the bill to establish such commission was going to be rushed through the House, without giving them any opportunity for public consultation and presenting their views thereupon to government.

In an earlier report, the Council of Europe's Venice Commission had already criticised government for this undemocratic way purposefully designed of enacting legislation in Malta - that is, in an authoritarian and arrogant way to ignore the public in the legislative process so that government could bull doze its bill over the opposition in the House.

Today I comment on another Bill of July 2026 that was also rushed through, though this time round it was approved by government with the opposition voting also in favour, and that also leaves much to be desired from a rule of law perspective.

On 12 May 2026, the government submitted a draft bill to the Venice Commission proposing to alter the Administrative Justice Act (hereinafter 'the draft Bill'). On 23 July 2026 the Venice Commission adopted its report identifying seven shortcomings therein. Bill No. 6 was published on 16 July 2026 to amend the Administrative Justice Act, a law that I had drafted in 2007, and Bill No. 6 was enacted into law by Act No. XVIII of 2026 on 31 July 2026.

Bill No. 6 unfortunately was rushed through the House. It was not subject to any serious and thorough public consultation so much so that it was approved within a two-week period, hardly a healthy procedure in a democratic society based on the rule of law to allow for public consultation thereupon.

The purpose of the Administrative Justice Act was to do away with around 100 administrative tribunals or so that existed in Malta in 2007, that were identified in a report compiled by Professor Ivan Mifsud, now Dean of the Faculty of Laws, and presented to the then Minister of justice. The bulk of these tribunals did not respect to the full the rules of procedural fairness, impartiality, and independence of the adjudicating body on the same lines the courts of justice do. The 2007 enactment established an Administrative Review Tribunal to absorb these justice deficient administrative tribunals whilst upgrading due process, independence, and impartiality rules of procedure. Tribunals varied in subject-matter, importance, and workload. The Environment and Planning Review Tribunal, for instance, was (and continues to be) a tribunal that receives a considerable number of appeals, that is, it still functions to date as an independent tribunal. 

With the change in government in 2013, the process of absorbing these tribunals into the Administrative Review Tribunal not only stopped but new tribunals continued to be established since then that do not enjoy such a rigorous standard of fair hearing, independence, and impartiality as the Administrative Review Tribunal and our courts enjoy. The latter tribunal has since its establishment been presided by a sitting Magistrate. After having absorbed multiple tribunals and consolidated their functions in the Administrative Review Tribunal, the thinking at the time of the enactment of the 2007 law was to further upgrade the Administrative Review Tribunal to an Administrative Court.

If it were these amendments that government was proposing in the July 2026 Bill No 6 to amend the Administrative Justice Act, and approved in parliament later that month through Act No. XVIII of 2026, I would have given my full and unconditional support to Bill No. 6 and Act No. XVIII of 2026 because this is the direction that a parliamentary democracy based on the rule of law should follow - you always improve standards not lower them as the Draft Bill envisaged.

What were the Deficiencies of the Draft Bill submitted to the Venice Commission?

The additional Part IVA of the Draft Bill that the government wanted to introduce into the Administrative Justice Act was proposing to establish a stand-alone parallel administrative (not judicial) structure to those that already exist in the Constitution for the appointment and discipline of the judiciary with full constitutional, independence, and human rights compliant standards, these being the Judicial Appointments Committee (JAC) and the Judicial Discipline Committee (JDC). The only difference between the constitutional JAC and JDC is that they are really independent whilst the new Appointment Commission that was proposed in the Draft Bill was anything but independent. As will be seen later on in this article, this position remains so also in Bill No 6 and in Act No. XVIII of 2026.

If I were drafting the said amendments to the Administrative Justice Act, I would have continued with the 2007 vision to upgrade the fair trial, independence, and impartiality standards of quasi-judicial tribunals. This can be very easily done by simply extending the remit of the Judicial Appointments Committee and the Judicial Discipline Committee to administrative tribunals until such time is arrived at where an Administrative Code is enacted on the lines that I had submitted to the House of Representatives' Select Committee on Recodification and Consolidation of Law in 2012, at that time chaired by the Hon Dr Franco Debono MP, that also proposed the establishment of an Administrative Court. Unfortunately, when the Labour Party came to power in 2013, it did not continue with the discussion and approval in the House of Representatives of the Administrative Code that had been opened for public consultation before dissolution of parliament in 2012.

My honest opinion on the draft Bill (that was not however submitted to the House as originally drafted but in an improved - yet still defective - version) is - overall - a negative one for the following reasons:

(1) it did not make sense to replicate existing structures that could have easily had their terms of reference extended to cater for both judicial and quasi-judicial state entities. This criticism also applies to Bill No. 6 and Act No XVIII of 2026 that emulated the same mistake of the Draft Bill;

(2) as the JAC and the JDC are established by the Constitution and changes thereto must be approved by at least a two-thirds majority vote of the House of Representatives, and as their composition is extracted from the judicial organ of the state (not from the executive), they enjoy sufficient guarantees of independence and impartiality in the exercise of their functions. On the contrary, the proposed Commission to be established by the Draft Bill did not enjoy any constitutional safeguards in relation to a qualified majority vote to alter the Administrative Justice Act: it requires at least a simple majority vote and could, over time, be altered in the same way, in all cases without the approval vote (consensus) of the parliamentary opposition (this is also the same position in Bill No 6 and Act No XVIII of 2026);

(3) the proposed Commission did not enjoy the same level of independence and impartiality as the constitutional JAC and JDC. The proposed commission as proposed in the Draft Bill was to be composed of a retired member of the judiciary - not a sitting judicial officer - who did not enjoy any constitutional guarantees of independence and impartiality, with two civil servants who receive orders directly from their minister in their ordinary day-to-day functioning, and are routinely subject to the diktat of their minister. What guarantees does one have - except for paper guarantees that in practice are easily bypassed - that this incestuous relationship will not affect the judgment of the civil servants, bearing in mind that their 15% of salary performance bonus will surely take into account their relationship with (that is, obedience to) their respective minister?

This relation of inferiority does not bode well for guarantees of independence of the Commission. With two civil servants in a majority, the retired judge or magistrate would have no final say on anything. It would be, therefore, government through these two stooges that will have the ultimate say. Goodbye to the Commission's independence. Even the retired judge or magistrate is a political appointee for the government did not even have the decency to establish that s/he should be appointed not by government but by the JAC who ordinarily appoints judges and magistrates as part of its routine constitutional functions. But no, government did not want to cede one iota of its powers;

(4) the rule of law dictates that when new measures are legislatively implemented, the quality of the law should be superior to extant law. In this case, the changes proposed by the Draft Bill were regressive for they lowered the independence standards in relation to the composition of the Commission when compared to the higher rule-of-law compliant standards of the constitutional JAC and JDC (this is also the same in Bill No 6 and in Act No. XVIII of 2026);

(5) the principle of due diligence requires that taxpayers' money is made use in a prudent and diligent manner. By introducing additional unnecessary and expensive institutions that are a burden on the taxpayer and government coffers - especially when absolutely not needed (it is good to know what position the Minister responsible for finance adopted when this Draft Bill was discussed in Cabinet) - would have incurred extra and unnecessary costs to populate, finance, and equip a new state commission that will surely run into thousands of euros. The duplication of extant structures would not have been an efficient way how to administer the public purse: it contributes to money dissipation and wastage, and is an ineffective way how to administer diligently the finite public finances of the country. It will also depart - if not contradict - the robust procedures adopted by the JAC and JDC. But for government, money is not problem once it is not ministers who are pocketing the expenses for such new unnecessary administrative structures.

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