The first part of this article examined the Draft Bill to amend the Administrative Justice Act that the government submitted to the Venice Commission. The second part discusses what happened afterwards, that is, the publication of Bill No 6 in July 2026 and its enactment within a fortnight with no possibility of public consultation, a practice that the Venice Commission has criticised and that procures a democratic deficit but the government does not appear to learn from its own past mistakes.

What Did Bill No 6 and the Act Change?

The composition of the Commission for the Appointment and Discipline in Administrative Tribunals has been altered both in Bill No. 6 and in the enactment that followed when compared to the original Draft Bill submitted to the Venice Commission. The retired Judge or Magistrate were retained but the two permanent secretaries that enjoy no independence from government were correctly removed and instead substituted by four 'members who shall be persons of known integrity and recognised competence, possessing substantial experience in public administration, governance, regulation, administrative justice or other fields related to the functions of administrative tribunals'.

Undoubtedly, this is a marked improvement on the previous appalling version and the minister of justice must be applauded on this change even if it is insufficiently bold from a rule of law perspective. Nevertheless, the chair and four members are all appointed by the President 'acting on the advice of the Cabinet' and the law does not delineate the appointment procedure to ensure that (i) all appointments are meritorious; and (ii) all the four members appointed satisfy the criteria listed in the law. Further, their appointment is a political not a judicial appointment.

For instance, there is no requirement that the four members will be assessed say, initially, by the Cabinet Secretary to ensure all the law's criteria are objectively met. Again, one asks: why should it be the Cabinet that should advice on such appointment when this task could have been easily devolved upon the Committee of the House of Representatives that deals with public appointments? What is the purpose of having such House Committee when it is then bypassed by Cabinet? The only reason that comes to mind is to maintain a concentration of power in the hands of Cabinet.

Furthermore, the original problem in the Draft Bill of establishing another state entity when such task could have been carried out by the JAC or the public appointments parliamentary committee has not been addressed both in Bill No 6 and in Act No XVIII of 2026, and this new government structure comes at a hefty cost to government coffers. Government is not adopting a prudential approach in administering the people's money but one that dissipates irresponsibly taxpayers' money. This spendthrift approach to governance is unfortunately seen also in the new tribunals that are being established when, as a matter of fact, there is already the Administrative Review Tribunal that can carry out such task. So why replicate extant structures? Why throw away government money in such an irresponsible way?      

Whilst the Commission is correctly tasked to issue a public call for applications and organise a competitive merit-based process to select the chairs and members of a handful of administrative tribunals (for not all administrative tribunals are subject to this law but only a handful and one asks why this discriminatory and inconsistent treatment?), when Cabinet advices the President on the appointment of the chair and four members, no such call for applications, competitive merit-based process are required? Two weights and two measures are being applied in one and the same law. That's for uniformity in legislation!

The one and only amendment proposed in committee stage by the opposition (and one queries why the Opposition not only failed in its task to oppose a Bill that runs counter to the rule of law but even approved it at third reading) that one of the four members of the commission should be an opposition nominee, correctly rejected by government, would have exacerbated the politicisation of the commission that should not carry political baggage. This amendment would have contributed to lessen more the independence of the Commission by specifically tying it to the opposition band wagon. It would have further defeated the whole purpose of establishing an independent commission.

Conclusion

I would scuttle these regressive amendments that are unsuitable for a parliamentary democracy based on the rule of law and instead extend the jurisdiction of the JAC and JDC to cater for the appointment and discipline of quasi-administrative tribunals and even for the appointment of Commissioner of Police, State Advocate, and Attorney General to ensure that whoever is appointed to sit on quasi-judicial tribunals and act as Commissioner of Police, State Advocate, and Attorney General, they are provided with the fullest possible independence from executive and legislative interference and influence in their functioning and decision making.

We all know that the Executive exercises a tight control on the latter three state officers and possibly as well on select quasi-judicial tribunals through the appointment procedure that was and will continue to be in the hands of government. These amendments do not really change one iota from the status quo prior to their enactment for government will still continue to retain the reins of power in the appointment procedure. The Commission's composition is still determined by government. Remember: the Commission members are all political appointees. Democracy dictates that government sheds its power in this respect and not consolidates it within itself. Power should be exercised by the meritorious constitutional institutions that guarantee real independence and impartiality not by a Commission that is appointed by the President according to the diktat of Cabinet.

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

The first part of this article was published last Sunday