Malta

   

Quality of Democracy

#35
Key Findings
Despite effective and impartial electoral laws, Malta scores relatively poorly in international comparison (rank 35) with regard to the quality of democracy. Its score in this area has improved by 0.4 points relative to 2014.

A recently passed law governs political-party donations, but parties have quickly found serious loopholes. Some progress has been made in freeing state-owned media from state influence. Political parties own broadcast and print media. Very strict libel laws constrain journalists’ reporting, although reforms have been proposed.

Civil rights and political liberties are generally respected. New rights have been granted to the LGBTQ community, and gender-equality protections have improved. Abortion laws are very restrictive. Discrimination on the basis of political affiliation remains common, and women are underrepresented in many social areas. Migrant workers face employment discrimination.

Though anti-corruption measures have been strengthened, conflicts of interest remain common. A recently passed law improves the selection process for judicial appointments, but final decisions are still made by the government, undermining independence.

Electoral Processes

#36

How fair are procedures for registering candidates and parties?

10
 9

Legal regulations provide for a fair registration procedure for all elections; candidates and parties are not discriminated against.
 8
 7
 6


A few restrictions on election procedures discriminate against a small number of candidates and parties.
 5
 4
 3


Some unreasonable restrictions on election procedures exist that discriminate against many candidates and parties.
 2
 1

Discriminating registration procedures for elections are widespread and prevent a large number of potential candidates or parties from participating.
Candidacy Procedures
9
Elections are regulated by the constitution and the General Elections Act. The system used in Malta is the Single Transferable Vote (STV). Candidates can stand either as independents or as members of a political party. Parties can field as many candidates as they wish, and candidates may choose to stand in two electoral districts. If elected in both districts, a candidate will cede their second seat. The vacated seat is then assigned to the candidate with the most second preference votes on the ballot. The system allows for a diversity of candidates and restrictions are minimal, though legal restrictions based on residency, certain official functions and court judgments exist. There have been persistent calls for electoral system reform on the basis of several issues. These include the lack of an official minimum threshold, absence of national quotas for parties to gain access to parliament, candidates are listed alphabetically, lack of correctives to encourage the election of female candidates and multiple candidates from the same party can be elected in the same district, the latter placing too much power in the hands of canvassers. The present electoral law also does not allow a formal coalition of parties to contest the election. Recent provisions to ensure proportionality only increase bipartisanship; ballots only include colored logos for the two main parties. There is also no state funding for parties, though the two main parties receive €100,000 annually, which may be used for campaigning. Meetings of the electoral commission are closed and there is an absence of representatives from non-parliamentary parties.

Citations:
Malta Today 05/07/17 Now is the time for Electoral reform
OSCE/ODIHR (2017) Election Assessment Mission Final Report - Malta

To what extent do candidates and parties have fair access to the media and other means of communication?

10
 9

All candidates and parties have equal opportunities of access to the media and other means of communication. All major media outlets provide a fair and balanced coverage of the range of different political positions.
 8
 7
 6


Candidates and parties have largely equal opportunities of access to the media and other means of communication. The major media outlets provide a fair and balanced coverage of different political positions.
 5
 4
 3


Candidates and parties often do not have equal opportunities of access to the media and other means of communication. While the major media outlets represent a partisan political bias, the media system as a whole provides fair coverage of different political positions.
 2
 1

Candidates and parties lack equal opportunities of access to the media and other means of communications. The major media outlets are biased in favor of certain political groups or views and discriminate against others.
Media Access
5
Malta has both state and private media. The Maltese constitution provides for a Broadcasting Authority (BA). Owing to its composition and appointment procedure, the BA is not perceived as an independent regulator. Its job is to supervise broadcasting and ensure impartiality. However, the BA focuses on the PBS (public broadcasting service) and not private outlets. It also does not monitor campaign coverage but rather acts on complaints. During elections, the BA provides for equal time for the two major political parties on state television on its own political debate programs as well as airtime for political advertising. However, smaller parties or independent candidates do not receive equal treatment on state media. In the 2017 elections, the small parties were not able to participate in the main pre-election debates on the PBS; several formal complaints were filed by the smaller parties. The PBS management is appointed by government, which is said to negatively impact its independence. Complaints to the broadcasting watchdog have dwindled and no fines were levied in 2017. The two major political parties also have their own media outlets, which gives them an advantage over smaller parties and has a restrictive effect on genuine debate. The BA and the Press Act require party-run media to allow for a right of reply to an aggrieved party or individual. Access to newspapers becomes increasingly restricted at election time; unrestricted access is obtainable at a cost.

Due to increased competition and the proliferation of privately-owned radio and television stations, all candidates can now obtain airtime to present their views, albeit at a cost. However, the 2017 OSCE election assessment mission report stated that independent candidates and small parties enjoyed little visibility apart from on social media.

Citations:
http://www.ba-malta.org/prdetails?i d=246
Social Media during the 2013 General Election in Malta. Department of Information Malta
www.consilium.europa.eu/media/…/1 st-panel-oswald-main-slide-speaker….
Sammut,C (2007) Malta and the Media Landscape

To what extent do all citizens have the opportunity to exercise their right of participation in national elections?

10
 9

All adult citizens can participate in national elections. All eligible voters are registered if they wish to be. There are no discriminations observable in the exercise of the right to vote. There are no disincentives to voting.
 8
 7
 6


The procedures for the registration of voters and voting are for the most part effective, impartial and nondiscriminatory. Citizens can appeal to courts if they feel being discriminated. Disincentives to voting generally do not constitute genuine obstacles.
 5
 4
 3


While the procedures for the registration of voters and voting are de jure non-discriminatory, isolated cases of discrimination occur in practice. For some citizens, disincentives to voting constitute significant obstacles.
 2
 1

The procedures for the registration of voters or voting have systemic discriminatory effects. De facto, a substantial number of adult citizens are excluded from national elections.
Voting and Registration Rights
8
Malta’s electoral laws are effective and impartial, and are controlled by a constitutionally-designated electoral commission. While there is no legal obligation to vote, turnout at general elections is high at over 90%. Maltese law states that any individual sentenced to a minimum prison term of one year cannot vote in elections. In the absence of postal or electronic voting mechanisms, residency qualifications are an obstacle to voting since voters are required to physically cast their ballots in Malta. However, Maltese citizens living abroad can access highly subsidized airfares to Malta for the purpose of voting. Amendments to the Electoral Law 2012 have strengthened the voting rights of some citizens, primarily those who celebrate their 18th birthday after the publication of the electoral register. At the local level, the vote has now been extended to 16-year-olds. The island country is currently debating a similar extension for general elections. Other changes have helped patients cast their votes during a hospital stay. Notwithstanding, legislation must be harmonized to ensure full voting rights for individuals with mental disabilities. Residents who are not citizens may not vote in national elections, yet in line with EU law, they may participate in local or European Parliament elections, though there have been registration problems. Immigrants and refugees, however, do not enjoy the right to vote. Recommendations have been made to increase transparency in the system. These include a secrecy mechanism for assisted voters as well as laws enabling international observers to examine the election process, the setting of deadlines and publishing of all records of complaint.

Citations:
http://www.timesofmalta.com/article s/view/20130115/elections-news/ad-o n-voting-rights-for-maltese-abroad- party-financing.453281
http://www.timesofmalta.com/articles/view/20 130220/local/Should-prisoners-in-Ma lta-be-allowed-election-vote-.45843 0
Should Migrants have the Right to Vote? Times of Malta 23/06/14
https://www.timesofmalta.com/articles/view/20171015/local/counting-halls-electronic-voting-and-legal-changes-on-electoral.660402

To what extent is private and public party financing and electoral campaign financing transparent, effectively monitored and in case of infringement of rules subject to proportionate and dissuasive sanction?

10
 9

The state enforces that donations to political parties are made public and provides for independent monitoring to that respect. Effective measures to prevent evasion are effectively in place and infringements subject to effective, proportionate and dissuasive sanctions.
 8
 7
 6


The state enforces that donations to political parties are made public and provides for independent monitoring. Although infringements are subject to proportionate sanctions, some, although few, loopholes and options for circumvention still exist.
 5
 4
 3


The state provides that donations to political parties shall be published. Party financing is subject to some degree of independent monitoring but monitoring either proves regularly ineffective or proportionate sanctions in case of infringement do not follow.
 2
 1

The rules for party and campaign financing do not effectively enforce the obligation to make the donations public. Party and campaign financing is neither monitored independently nor, in case of infringements, subject to proportionate sanctions.
Party Financing
4
Malta passed its first party financing law in July 2015, which requires that political parties should be subject to international standards of accounting and auditing; cannot accept donations from companies associated with the government; cannot accept donations from entities, foundations, trusts and nominees whose beneficiaries are unknown; donations in excess of €7,000 must be recorded online and reported to the Electoral Commission; and donations from individuals must be capped at €25,000. As a consequence of this legislation, political parties in 2016 were forced to publish details on the financing of their electoral campaigns. However, the effectiveness of this legislation has been challenged by a loan scheme launched in 2016 by the opposition party, which it claims allows it to keep the names of donors secret. The electoral commission lacks the power to ensure compliance since it is unable to control sources of income beyond donations. Other flaws of the new legislation include the absence of a requirement to use a designated bank account or to disclose donations to entities owned by political parties as well as an excessive disclosure threshold, a failure to cap spending at €2 million, and a lack of detailed and timely reporting. It has also been noted that there is insufficient harmonization of the regulations relating to the Financing of Political Parties Act (FPPA) and General Elections Act, raising concerns over which act would take legal precedence. The role of the electoral commission as the appropriate body to act as investigator and adjudicator with regard to the FPPA has also been questioned.

Citations:
http://www.timesofmalta.com/articles/view/20150721/local/pns-conditional-yes-to-party-funding-bill.577469
http://www.maltatoday.com.mt/news/national/55315/party_financing_bill_passes_into_law_both_parties_vote_in_favour#.ViNkq34rKM8
Party Financing a lost opportunity Malta Today 23/07/2015
http://www.timesofmalta.com/articles/view/20160917/local/pn-refusing-to-disclose-cedoli-scheme-donor-details.625240
http://www.timesofmalta.com/articles/view/20160911/local/cedoli-make-3m-as-pn-prepares-for-an-election.624637
tvm.com.mt 09/12/15 Malta off GRECO blacklist thanks to legislation on party financing
Times of Malta 07/11/17 Four Electoral Commission Members opted not to apply party financing law fearing human rights breach

Do citizens have the opportunity to take binding political decisions when they want to do so?

10
 9

Citizens have the effective opportunity to actively propose and take binding decisions on issues of importance to them through popular initiatives and referendums. The set of eligible issues is extensive, and includes national, regional, and local issues.
 8
 7
 6


Citizens have the effective opportunity to take binding decisions on issues of importance to them through either popular initiatives or referendums. The set of eligible issues covers at least two levels of government.
 5
 4
 3


Citizens have the effective opportunity to vote on issues of importance to them through a legally binding measure. The set of eligible issues is limited to one level of government.
 2
 1

Citizens have no effective opportunity to vote on issues of importance to them through a legally binding measure.
Popular Decision-Making
3
The constitution of Malta allows for three types of referendums: constitutional, consultative and abrogative. None of these types however fulfill the criteria for popular decision-making defined by the SGI. However, Malta has had several consultative referendums, the most recent in 2011 on the introduction of divorce, and an abrogative referendum on the issue of spring hunting. In the latter case, the referendum was triggered by a citizens’ initiative. Some local councils have also resorted to referendums, but while this may influence central government decisions, they are not binding.

Citations:
http://www.maltatoday.com.mt/lifestyle/environment/38168/spring_hunting_referendum_is_revolutionary#.ViNoVn4rKM8
The Constitution of Malta
http://www.timesofmalta.com/articles/view/20140330/local/-Spring-hunting-in-dustbin-of-history-.512723
http://www.timesofmalta.com/articles/view/20140328/local/signatures-for-referendum-to-abolish-spring-hunting-presented-to.512579
http://www.timesofmalta.com/articles/view/20160710/letters/Perseverance-and-tenacity.618307
http://www.timesofmalta.com/articles/view/20160826/local/help-us-oppose-pas-firework-factory-plans-gharb-local-council.623151

Access to Information

#33

To what extent are the media independent from government?

10
 9

Public and private media are independent from government influence; their independence is institutionally protected and fully respected by the incumbent government.
 8
 7
 6


The incumbent government largely respects the independence of media. However, there are occasional attempts to exert influence.
 5
 4
 3


The incumbent government seeks to ensure its political objectives indirectly by influencing the personnel policies, organizational framework or financial resources of public media, and/or the licensing regime/ market access for private media.
 2
 1

Major media outlets are frequently influenced by the incumbent government promoting its partisan political objectives. To ensure pro-government media reporting, governmental actors exert direct political pressure and violate existing rules of media regulation or change them to benefit their interests.
Media Freedom
6
Private media operates free from government interference. Mechanisms exist to ensure that state media operate independently from government interference; since 2014, we have witnessed further progress on this issue. The prime minister appoints all the directors of the State Media Board, as well as all the members of its editorial board. Journalists do often display a clear party preference, which sometimes undermines media independence. Since the general election on 9 March 2013, the government has allowed for a greater diversity of program producers on state broadcasters. Even though state activities dominate the media, existing media diversity and a recent increase in competition ensures that the system is essentially pluralist and a range of opinions remain available. The 2016 World Press Freedom Index placed Malta 46th, two points higher than in the previous year. However, a number of surveys show that public trust in the media ranks among the lowest in the EU. In a 2016 European Commission report on media pluralism, 76% of respondents stated that the media provides a diversity of views and opinions, but only 28% thought that the media provided information free from political or commercial pressure. In the same survey, 44% believed that the media provided trustworthy information, with the lowest scores assigned to newspapers and social media. Also, only 39% viewed the national regulator as free and independent.

In 2016, Malta reformed its vilification laws to allow for greater freedom from prosecution. Prior to this reform, Malta overhauled its censorship laws, allowing for near zero control on the media and the arts. Journalists continue to claim that existing draconian libel laws undermine their work. Malta’s press laws are, however, being overhauled. Proposed reforms include the removal of criminal libel and the restriction on defamation of the president, a cap on libel damages (including a clause stating that courts needs to take into account the impact that financial damages may have on a media outlet), and voluntary registration of media outlets. The OSCE welcomed recent changes made to the proposed legislation, but offered additional recommendations, including that a more balanced approach is needed with regard to the defense of truth.

Citations:
Journalists’ institute calls for reform of libel laws. Times of Malta 18/07/2015
Cabinet mulls brave new defamation law. Malta Today 11/11/2015
http://www.timesofmalta.com/articles/view/20161001/local/institute-of-maltese-journalists-calls-for-decriminalization-of-libel.626631
http://www.timesofmalta.com/articles/view/20160713/local/justice-minister.618702
http://www.timesofmalta.com/articles/view/20160714/local/repealing-blasphemy-law-a-victory-for-freedom-of-speech-says-humanist.618859
https://rsf.org/en/ranking
Standard Eurobarometre 84 Autumn 2015
Malta Today 29/11/17 OSCE analysis of Malta’s upcoming media law
Legal analysis of the draft law of the Republic of Malta to provide for the updating of the regulation of media and defamation matters and for matters consequential or ancilliary thereto, Commissioned by the office of the OSCE Representative on freedom of the media from Dr. Joan Barata November 2017
Draft law of the Republic of Malta to provide for the updating of the regulation of media and defamation matters and for matters consequential or ancilliary thereto 2017
Special Eurobarometer 452.Media Pluralism and Democracy November 2017
World press freedom index of reporters without borers 2016

To what extent are the media characterized by an ownership structure that ensures a pluralism of opinions?

10
 9

Diversified ownership structures characterize both the electronic and print media market, providing a well-balanced pluralism of opinions. Effective anti-monopoly policies and impartial, open public media guarantee a pluralism of opinions.
 8
 7
 6


Diversified ownership structures prevail in the electronic and print media market. Public media compensate for deficiencies or biases in private media reporting by representing a wider range of opinions.
 5
 4
 3


Oligopolistic ownership structures characterize either the electronic or the print media market. Important opinions are represented but there are no or only weak institutional guarantees against the predominance of certain opinions.
 2
 1

Oligopolistic ownership structures characterize both the electronic and the print media market. Few companies dominate the media, most programs are biased, and there is evidence that certain opinions are not published or are marginalized.
Media Pluralism
6
Maltese media outlets, including visual media, electronic media and print publications, are primarily owned by a mix of actors: political parties, the Catholic Church, private entrepreneurs and the General Workers’ Union (GWU), a major left-wing trade union. Thus, Malta’s media landscape reflects a plurality of ownership. Pluralism of opinion within the media depends entirely on the willingness of ownership to allow the publication or dissemination of opposing viewpoints or dissent from current orthodoxy. The state media, by extending access to private media outlets, has expanded plurality of viewpoints and has had few legal cases brought against it. The state fulfills its obligations better now than in the past. However, competition for market share has forced both privately-owned and politically-owned media to publish dissenting opinions more readily. A report on media pluralism in Malta shows a high score in terms of basic protection and market plurality, but a lower score for political independence and social inclusiveness. It also pointed out that Malta is the only EU country where the two major political parties own television and radio stations as well as newspapers. According to the Media Pluralism Monitor 2016, media ownership is transparent but data on revenues are not available. Most of the risk-increasing factors relate to the lack of data on the media market, lack of protection for and self-regulation by journalists, and the lack of a media literacy policy. In a 2016 European Commission report on media pluralism, 76% of respondents stated that the media provide a diversity of views and opinions, 48% thought the media was more free and independent than five years ago; Malta showed the most improved score over the past five years in both cases. Notwithstanding, only 28% thought that the media provide information free from political or commercial pressure.

Citations:
http://www.timesofmalta.com/article s/view/20130428/opinion/Making-PBS- a-fit-national-entity.467423
http: //www.timesofmalta.com/articles/vie w/20130423/local/new-pbs-chairman-t hanks-the-pm.466622
http://www.tim esofmalta.com/articles/view/2013042 5/local/Time-for-changing-of-the-gu ard-at-PBS.467040
Media Pluralism in Malta, A Test Implementation of the Media Pluralism Monitor 2015
Media Pluralism in Malta, A Test Implementation of the Media Pluralism Monitor 2016

To what extent can citizens obtain official information?

10
 9

Legal regulations guarantee free and easy access to official information, contain few, reasonable restrictions, and there are effective mechanisms of appeal and oversight enabling citizens to access information.
 8
 7
 6


Access to official information is regulated by law. Most restrictions are justified, but access is sometimes complicated by bureaucratic procedures. Existing appeal and oversight mechanisms permit citizens to enforce their right of access.
 5
 4
 3


Access to official information is partially regulated by law, but complicated by bureaucratic procedures and some poorly justified restrictions. Existing appeal and oversight mechanisms are often ineffective.
 2
 1

Access to official information is not regulated by law; there are many restrictions of access, bureaucratic procedures and no or ineffective mechanisms of enforcement.
Access to Government Information
4
The Freedom of Information Act was passed in 2008 and only came into force in September 2012. Since this time journalists have had better access to information from government bodies. However, exemptions compromise the bulk of the legislation. Under Article 5(4), no Maltese citizen is entitled to apply to view documents held by the Electoral Commission, the Employment Commission, the Public Service Commission, the Office of the Attorney General, the National Audit Office, the Security Service, the Ombudsman Office and the Broadcasting Authority, when the latter is exercising its constitutional function. Under Article 3, only Maltese and EU nationals who have been resident in Malta for a minimum of five years may access information. The prime minister also holds the power to overrule the Information and Data Protection commissioner, despite the latter’s declaration that a request for information should be approved. Moreover, there are a number of laws that still contain secrecy provisions to which the act does not apply. This undermines the essential workings of the act, as it could be in the political interest of the prime minister to suppress the publication of documents, which might embarrass or undermine his administration. The act does not meet the standards of the Council of Europe’s Convention on Access to Official Documents. In 2016, the government received 175 requests for information, a considerable increase over the 62 filed between 2013 and 2015. Just over half of the requests in 2016 were fully or partially replied to.

Citations:
Aquilina, K, Information Freedom at Last. Times of Malta, 22/08/12
Freedom of Information Act Comes Fully into Force. The Independent 02/09/12
In spite of fines ministry offers no reply to Times FOI request Times of Malta 9/5/2015
http://www.timesofmalta.com/articles/view/20160827/local/has-the-freedom-of-information-act-worked.623201
Government says no to most Times of Malta requests for information Times of Malta 11/06/16
Times of Malta 12/08/17 Freedom of information requests tripled in three years
Times of Malta 27/08/16 Has the Freedom of information Act worked?
Times of Malta 30/11/17 Over 400 Freedom of information requests in 3 years

Civil Rights and Political Liberties

#32

To what extent does the state respect and protect civil rights and how effectively are citizens protected by courts against infringements of their rights?

10
 9

All state institutions respect and effectively protect civil rights. Citizens are effectively protected by courts against infringements of their rights. Infringements present an extreme exception.
 8
 7
 6


The state respects and protects rights, with few infringements. Courts provide protection.
 5
 4
 3


Despite formal protection, frequent infringements of civil rights occur and court protection often proves ineffective.
 2
 1

State institutions respect civil rights only formally, and civil rights are frequently violated. Court protection is not effective.
Civil Rights
7
The state generally respects human rights and human rights issues have judicial protection. The integration of the European Convention on Human Rights into Maltese law has strengthened protection of human rights, and decisions by the European Court of Human Rights are normally implemented; however, experts have criticized general practices saying that court procedures take far too long. This appears to be the case with human trafficking, where Malta is still said to not meet minimum standards. However, recent reforms in the courts have improved matters. The extension of rights to members of the LGBT community has improved civil rights protections. An increased focused on gender equality has improved matters considerably as has the transposition into domestic law of the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (Istanbul Convention). There has been a similar development regarding disabled persons in Malta. Reforms concerning the civil rights of immigrants and asylum-seekers, including the removal of automatic detention, along with the high numbers of asylum-seekers being accorded humanitarian protection status has been noted. Nonetheless, the recognition rate of refugee status remains low. Better access to housing and support for migrants to integrate with the community needs to be made available. The prime minister has declared that the government will tackle the exploitation of refugees by employers, while a Human Rights and Equality Commissioner has been appointed and a new integration policy is being launched. Malta has not, however, ratified the relevant conventions on statelessness. The dereliction of the rights of prisoners confined in overcrowded and substandard conditions has also been noted. On a recent visit to Malta, the Council of Europe’s commissioner for human rights noted the introduction of the morning after pill, but stressed the lack of debate on access to safe abortions; the island country continues to have one of the most restrictive abortion regimes in Europe. In the Freedom in the World Report 2017, Malta’s score remained unchanged at 96 out of 100.

Citations:
The Malta human rights report 2015 The people for change foundation.
http://www.timesofmalta.com/articles/view/20160713/editorial/Spotlight-on-human-trafficking.618620
http://www.timesofmalta.com/articles/view/20160819/local/maltas-laws-on-detention-are-still-unclear-says-unhcr.622400
http://www.timesofmalta.com/articles/view/20160914/life-features/malta-and-lgbtiq-equality-one-year-on.624868
http://www.timesofmalta.com/articles/view/20160818/local/trangender-policy-for-prisons-launched.622376
http://www.timesofmalta.com/articles/view/20160803/local/fewer-complaints-filed-with-commission-for-people-with-a-disability.620908
http://inewsmalta.com/article.php?ID1=39241
The Guardian 07/12/16 Malta becomes first European Country to ban gay cure therapy
Amnesty International Annual Report Malta 2015/16
Times of Malta 03/01/16 New Migrant strategy is a step in right direction
Times of Malta 19/11/16 No More temporary humanitarian protection N for failed asylum-seekers
Times of Malta 14/10/17 No flushing toilets for 120 prisoners
Times of Malta 11/11/17 Commissioner Taken aback by non-debate on abortion
Freedom of the World 2017
Council of Europe, Commissioner for human rights, country Visit Malta 2017: Malta should step up efforts to enhance protection of women’s and migrant’s rights

To what extent does the state concede and protect political liberties?

10
 9

All state institutions concede and effectively protect political liberties.
 8
 7
 6


All state institutions for the most part concede and protect political liberties. There are only few infringements.
 5
 4
 3


State institutions concede political liberties but infringements occur regularly in practice.
 2
 1

Political liberties are unsatisfactory codified and frequently violated.
Political Liberties
7
The constitution of Malta and its chapter on fundamental human rights provide for a broad range of political and civil liberties. The incorporation of the European Convention on Human Rights into the Maltese constitution as well as membership in the European Union has also enhanced political liberties in Malta. Maltese citizens have the right to take a case before the European Court of Human Rights (ECHR), and several individuals have done so with success. However, a traditionally clientelistic and partisan approach to politics sometimes hinders the political liberties of individuals, forcing them to refrain from associating with political parties, non-government organizations and/or trade unions for fear of being discriminated against by the government in office or after a change of government. In the World Economic Forum’s Global Competitiveness Index 2017-2018, Malta’s ranking fell in terms of public trust in politicians and favoritism in decisions by government. However, there was an improvement in the score for transparency of government policymaking. The 2017 Eurobarometer, in contrast, reported an increased trust in government in 2016 (55%) over 2012 (34%). Excessive delays in the deciding of court cases and the costs of such delays often deter people from seeking legal solutions, although the picture has improved sharply on this issue. In 2013, a commission charged with reforming the judicial system was established and although it has presented a number of reports, it remains subject to criticisms regarding the delayed implementation of its recommendations. The right to a lawyer during police interrogation has now been fully implemented. Malta, however, has one of the lowest allocations of legal aid in the EU. In addition, legal aid lawyers are very poorly paid. Legal aid needs to be provided for pre-litigation advice, mediation and out-of-court settlements. The current threshold to be eligible for legal aid is also very low.

Citations:
Migrant Integration Policy Index. http://www.mipex.eu/malta
Freedom in the World 2015 Malta
COM (2014) 419 Final COUNCIL RECOMMENDATION on Malta’s 2014 National Reform Program
Judiciary criticizes proposals for reform of commission for the administration of justice Times of Malta 1/10/13
Justice Reform Commission makes 450 proposals Times of Malta 2/12/13
http://www.timesofmalta.com/articles/view/20160411/local/european-commission-justice-scoreboard-results-welcomed.608529
Times of Malta 28/09/16 Lawyers to be present during interrogation
Legal and Reformers Network Malta: parties agree on legal aid for suspects facing police interrogation
Access to Legal Assistance in Malta, Aditus 2017
Times of Malta 27/10/17 Malta’s Tribal Politics
Times of Malta 11/11/17 Permanent secretary to be compensated because of political discrimination
Global competitiveness report 2017-2018 World Economic Forum
Malta Independent 31/07/16 55% of Maltese trust government in 2016 compared to 34% in 2012

How effectively does the state protect against different forms of discrimination?

10
 9

State institutions effectively protect against and actively prevent discrimination. Cases of discrimination are extremely rare.
 8
 7
 6


State anti-discrimination protections are moderately successful. Few cases of discrimination are observed.
 5
 4
 3


State anti-discrimination efforts show limited success. Many cases of discrimination can be observed.
 2
 1

The state does not offer effective protection against discrimination. Discrimination is widespread in the public sector and in society.
Non-discrimination
5
The Maltese constitution’s chapter on fundamental human rights forbids discrimination on the basis of race, religion, gender or politics. Other laws forbid discrimination on the basis of physical disability or handicap. In Malta, the civil courts and the Constitutional Court are staunch defenders of anti-discrimination legislation. Since 2013, the government has strengthened the rights of gay, lesbian and transgender people through the establishment of civil unions and a gender identity act. Malta also has a number of independent commissions to protect the rights of vulnerable groups, such as children and disabled people. In the last budget, the government increased the fine for employers who discriminate against disabled people.

Women are generally underrepresented in the social, economic and political life of Malta; although much progress has been made in recent years, there remains a lack of consensus concerning the introduction of positive discrimination measures to address this problem. In the latest Gender Equality Index, composed of several indicators of equality, Malta scored 60% out of 100% overall and only 27.4% in the indicator of power In the workplace, women earn about half of what men receive. Discrimination on grounds of political affiliation remains a problem, a direct result of the electoral system used in Malta. Aggrieved ordinary citizens may take their case to the Constitutional Court, the Employment Commission or the Ombudsman Office, while public servants may also bring a case before the Public Service Commission. Nevertheless, allegations of discrimination on political grounds remain common. In addition, it has been alleged that many cases of discrimination remain unreported. Migrant workers experience discrimination in accessing employment and within employment.

Citations:
Carabott, S. Expats Petition against Malta Discrimination. Times of Malta 12/04/13
Ellul, T. REPORT ON MEASURES TO COMBAT DISCRIMINATION Directives 2000/43/EC and 2000/78/EC
COUNTRY REPORT 2011 MALTA
Unreported discrimination cases causes concerns Di Ve 24/05/13.
http://www.timesofmalta.com/articles/view/20160615/local/agreement-reached-on-electricity-tariffs-for-rented-properties.615486
http://www.maltatoday.com.mt/news/national/80052/muscat_to_participate_in_mentoring_programme_for_women_in_politics#.WesByVuCyM8
http://www.maltatoday.com.mt/news/national/80676/strong_representation_of_women_in_parliament_next_step_for_maltas_democracy#.WesCIluCyM8
Malta is almost half way to gender equality, European Institute for Gender equality 24/06/16
Times of Malta 04/11/17 Women in Malta earn half of what men get

Rule of Law

#33

To what extent do government and administration act on the basis of and in accordance with legal provisions to provide legal certainty?

10
 9

Government and administration act predictably, on the basis of and in accordance with legal provisions. Legal regulations are consistent and transparent, ensuring legal certainty.
 8
 7
 6


Government and administration rarely make unpredictable decisions. Legal regulations are consistent, but leave a large scope of discretion to the government or administration.
 5
 4
 3


Government and administration sometimes make unpredictable decisions that go beyond given legal bases or do not conform to existing legal regulations. Some legal regulations are inconsistent and contradictory.
 2
 1

Government and administration often make unpredictable decisions that lack a legal basis or ignore existing legal regulations. Legal regulations are inconsistent, full of loopholes and contradict each other.
Legal Certainty
6
The Maltese constitution states that the parliament may make laws with retrospective effect, although acts are not permitted to impose obligations on citizens retroactively. Court judgment upholding this principle have been particularly common in areas dealing with taxation and social services. However, governments do generally respect the principles of legal certainty, and the government administration generally follows legal obligations; the evidence for this comes from the number of court challenges in which government bodies have prevailed. However, reports from public bodies, such as the Ombudsman and the Auditor General, demonstrate that government institutions do sometimes make unpredictable decisions. In 2014, the National Audit Office further criticized a ministry’s intervention in a tender process for a legal-services contract related to concessions for the operations of casinos. The use of direct orders in ministries has also been prevalent. In one instance from the first half of 2017, direct orders totaling €640,000 were made by the European Affairs Ministry. Parliament is also slow to legislate on articles of the law that have been declared unconstitutional and need to be revised. Since Malta joined the European Union, however, the predictability of the majority of decisions made by the executive continues to improve as discretion becomes more constrained. Overall, legal certainty is robust, though there continue to be instances where the rule of law is misapplied by state institutions. Several laws and practices are in breach of the Maltese constitution or the European Convention on Human Rights: the Justice Sector Act 2016, Standards in Public Life Act 2017, continued use of direct orders by public administration, passing of subsidiary laws that breach primary laws, lack of a sentencing policy to ensure legal certainty in the application of punishment, and ignoring clear provisions in the constitution and instead basing judgments on inferior laws. The Coordination of Government Inspections Act 2017 restricts the number of inspections undertaken by government departments. The act does not exempt independent institutions such as the auditor general and data protection office, potentially restricting these institutions. The recent practice of placing members of parliament on regulatory boards is also unconstitutional.

Citations:
http://www.timesofmalta.com/articles/view/20150224/local/210000-commission-paid-in-cafe-premier-buyback-audit-office-slams.557475
http://www.timesofmalta.com/articles/view/20150104/local/Dalli-case-prompts-Ombudsman-action.550497
http://www.timesofmalta.com/articles/view/20150813/local/updated-some-diabetes-patients-denied-treatment-ombudsman.580496
Minister reacts as auditor criticizes re ranking of bidding firms Times of Malta 5/03/14
Updated; Government asks AG to amend unconstitutional industrial tribunal law Independent 12/02/16
http://www.maltatoday.com.mt/news/national/76165/maltese_perceive_judicial_independence_to_be_fairly_good#.WesFh1uCyM8
The Independent 20/12/17 Kevin Aquilina, The Rule of Law a La Maltaise
Malta Today 9/10/17 Former Planning and lands minister is now lawyer for both planning and lands authority
Times of Malta 7/10/17 Ombudsman queries positions of trust
Times of Malta 11/11/17 Ministry spends almost 30,000 euros on Liquor for EU Presidency
Interview with Prof Kevin Aquilina Dean of Law 12/17

To what extent do independent courts control whether government and administration act in conformity with the law?

10
 9

Independent courts effectively review executive action and ensure that the government and administration act in conformity with the law.
 8
 7
 6


Independent courts usually manage to control whether the government and administration act in conformity with the law.
 5
 4
 3


Courts are independent, but often fail to ensure legal compliance.
 2
 1

Courts are biased for or against the incumbent government and lack effective control.
Judicial Review
7
Malta has a strong tradition of judicial review, and the courts have traditionally exercised restraint on the government and its administration. In a 2017 case, Judge Wenzu Mintoff ruled against the ruling Labor party in a case involving the ombudsman. Judicial review is exercised through Article 469A of the Code of Organization and Civil Procedure and consists of a constitutional right to petition the courts to inquire into the validity of any administrative act or declare such act null, invalid or without effect. Recourse to judicial review is through the regular courts (i.e., the court of civil jurisdiction) assigned two or three judges or to the Administrative Review Tribunal and must be based on the following: that the act emanates from a public authority that is not authorized to perform it; or that a public authority has failed to observe the principles of natural justice or mandatory procedural requirements in performing the administrative act or in its prior deliberations thereon; or that the administrative act constitutes an abuse of the public authority’s power in that it is done for improper purposes or on the basis of irrelevant considerations; or as a catch-all clause, when the administrative act is otherwise contrary to law.

There have been calls to reform certain aspects of the process. Changes have been recommended with regard to the role of the attorney general who is the chief prosecutor but also acts as a legal adviser to the government. These two roles would be decoupled and instead an individual would serve as an independent prosecutor general and a second individual would take on the role of the attorney general, acting as the government’s advocate. The process through which court experts are chosen should also be revised to be more transparent.

Both the 2013 and 2015 EU Justice Scoreboard ranked Malta’s judicial system the least efficient in the EU with regard to the duration of cases. The 2017 Justice Scoreboard noted that more cases were being dealt with, the time needed to resolve cases had fallen drastically, the percentage of resolved cases had increased and the number of pending cases had fallen. Of those surveyed, 50% rated the independence of the courts and the judiciary as good or very good, an improvement over 2016. In 2017, no judges were transferred except for by the judiciary council and there were no dismissals. In the World Economic Forum’s global ranking for 2017 on the independence and impartiality of the judiciary, Malta was ranked in 51st place among 137 states, falling from 44th place in 2016. The appointment of more judges, improved planning processes and increased use of ICT have had a visible effect on the judicial process. Increased scrutiny of the bench by the Commission for the Administration of Justice has helped increase public confidence in the courts. The number of judges as a percentage of the population remains low, indicating difficulty in finding suitable candidates to take up the post; this may be linked to inadequate salaries and or the responsibilities that judges bear. Online information on published judgments are available, but there is no online information on the preliminary stages of a case. Delays and deferments may count against the process, but have fallen in number in recent years.

Citations:
http://ec.europa.eu/justice/effecti ve-justice/files/justice_scoreboard _communication_en.pdf
http://www.t imesofmalta.com/articles/view/20130 506/local/european-commission-says- malta-judicial-reform-must-be-made- a-priority.468460
Malta with the worst record in European Union justice score board Independent 23.03.2015
http://www.timesofmalta.com/articles/view/20160411/local/european-commission-justice-scoreboard-results-welcomed.608529
The 2016 EU Justice Score board
Malthttp://www.maltatoday.com.mt/news/national/76165/maltese_perceive_judicial_independence_to_be_fairly_good#.WesFh1uCyM8a’s Justice System Times of Malta 18/04/16

To what extent does the process of appointing (supreme or constitutional court) justices guarantee the independence of the judiciary?

10
 9

Justices are appointed in a cooperative appointment process with special majority requirements.
 8
 7
 6


Justices are exclusively appointed by different bodies with special majority requirements or in a cooperative selection process without special majority requirements.
 5
 4
 3


Justices are exclusively appointed by different bodies without special majority requirements.
 2
 1

All judges are appointed exclusively by a single body irrespective of other institutions.
Appointment of Justices
4
Superior Court judges and magistrates are appointed by the president, acting in accordance with the advice of the prime minister. The independence of the judiciary is safeguarded through a number of constitutional provisions. The prime minister enjoyed almost total discretion on judicial appointments. The only restraints are set in the constitution, which states that an appointee must be a law graduate from the University of Malta with no less than 12 years of experience as a practicing lawyer. Magistrates need to be similarly qualified, but are required to have only seven years of experience. In 2015, a government-appointed commission recommended reforming the appointment process. In 2016, parliament unanimously passed a law reforming the process. The law did not fully take on board the commission proposal that a six-member autonomous authority carry out a selection process to choose and advise on suitable candidates for the bench, with the final decision remaining with the government. However, all candidates who apply for the post are now vetted by the Commission for the Administration of Justice. Notwithstanding, the absence of formal calls to fill judicial positions and ranking system to assess applicants impedes the process. A recent law on the suspension of judges has been criticized by the dean of the law faculty at the University of Malta on the basis that suspended judges have no right to challenge the suspension and that the removal or dismissal of a judge should not be done by a body that is part of the legislature.

Citations:
European Council calls on Malta to improve transparency of Judicial Appointments. Independent 10/02/14
http://www.timesofmalta.com/articles/view/20150517/local/government-ignored-bonello-commission-recommendations-on-appointments.568405
http://www.timesofmalta.com/articles/view/20150819/local/minister-warns-against-reforming-judicial-appointments-system-for-the.581166
http://www.timesofmalta.com/articles/view/20150518/local/bonnici-we-will-reform-way-judiciary-appointed.568596
Judicial appointments and the executive: Government cannot continue to delay reform Independent 2/10/2015
http://www.timesofmalta.com/articles/view/20160225/local/judicial-commission-to-vet-nominees-to-bench.603674
http://www.timesofmalta.com/articles/view/20160718/local/historic-constitutional-amendments-on-judicial-appointments-discipline.619296
http://www.timesofmalta.com/articles/view/20160720/local/judiciary-welcomes-judicial-reform-legislation.619498
Interview with Professor Kevin Aquilina

To what extent are public officeholders prevented from abusing their position for private interests?

10
 9

Legal, political and public integrity mechanisms effectively prevent public officeholders from abusing their positions.
 8
 7
 6


Most integrity mechanisms function effectively and provide disincentives for public officeholders willing to abuse their positions.
 5
 4
 3


Some integrity mechanisms function, but do not effectively prevent public officeholders from abusing their positions.
 2
 1

Public officeholders can exploit their offices for private gain as they see fit without fear of legal consequences or adverse publicity.
Corruption Prevention
5
A number of institutions and processes work to prevent corruption and guarantee the integrity of government officials, including the Permanent Commission Against Corruption, the National Audit Office, the Ombudsman Office and the Public Service Commission. The government also abides by a separate Code of Ethics, set out for ministers, members of parliament and public servants. Ministers and members of parliament are also expected to make an annual asset declaration. The Public Accounts Committee of the unicameral House of Representatives can also investigate public expenditure decisions to ensure that money spent or contracts awarded are transparent and conducted according to law and general financial regulations.

Until recently, with the exception of the National Audit Office and the Ombudsman Office, these mechanisms provided insufficient guarantees against corruption. Internal audit systems can also be found in every department and ministry, but it is difficult to assess their effectiveness. The 2016 report of the audit office also highlighted regulatory abuse regarding procurement, inventory inadequacies, and non-compliance with tender requirements and ministries’ fiscal obligations. A recent academic report has shown decades long corruption at the planning authority. In the 2016 Corruption Perceptions Index, Malta slipped one point from 5.6 to 5.5. In the Global Competitiveness Index 2017, Malta obtained the following scores in a ranking of 1 to 7 (7 being the best score): public trust in politicians (2.9), irregular payments and bribes (4.7), and favoritism in decisions of government officials (2.8). However, the overall score for functioning institutions was 4.5, yielding an overall ranking of 38th out of 137. Both the National Audit Office and the Ombudsman Office are independent, but neither enjoys the necessary executive powers to follow up on their investigations. The Public Service Commission has consistently lacked sufficient resources for it to work effectively. The Permanent Commission Against Corruption was setup in 1988. Since then, over 300 cases has been investigated, though none have been prosecuted. Since the 2017 election, the commission has not been reconstituted as a result of the opposition party not yet having selected their candidate. In 2018, the ombudsman called for greater government transparency and accountability. The setting up of a new parliamentary committee to scrutinize public appointments is a move in the right direction, though it has been criticized for not going far enough and ensuring that all candidates be grilled by the board. The 2017 ombudsman’s report mentioned the need for legislation to regulate lobbying and how this relates to the right of individuals to receive correct and timely information on the activities of government. This is especially important in light of the link between lobbying and corruption.

In 2013, the government strengthened the fight against corruption by reducing elected political figures’ ability to evade corruption charges and introduced a more effective Whistleblower Act. Nonetheless, conflicts of interest remain prevalent. These are a result of the face-to-face relationships common in small countries and the fact that Malta’s members of parliament work part-time and maintain private interests. Presently, a number of magisterial inquiries are ongoing on alleged cases of corruption in government.

Citations:
Transparency International: The 2014 Corruption Perceptions Index CPI.Transparency.org/
Audit office finds lack of adherence to procurement regulations by the office of the prime minister Times of Malta 14/12 2015
Audit office flags unauthorized payments by science council Times of Malta 14/12/2015
No independent testing of concrete at child development center in Gozo Times of Malta 14/12/2015
Audit office calls for better verification of applications for social assistance Times of Malta 14/12/2015
http://www.timesofmalta.com/articles/view/20160503/local/minister-to-keep-pressure-on-mfsa-independent-regulator.610814
http://www.timesofmalta.com/articles/view/20160928/local/government-statement-pm-has-no-clue-if-chief-of-staff-will-benefit.626373
http://www.timesofmalta.com/articles/view/20160510/local/zammit-dimech-cachia-caruana-deny-panama-papers-links.611633
http://www.timesofmalta.com/articles/view/20151129/local/minister-tells-his-business-partners-to-obey-the-law.593836
http://www.timesofmalta.com/articles/view/20160407/local/konrad-mizzi-to-address-labor-conference-as-pressure-over-panama.608123
http://www.timesofmalta.com/articles/view/20161008/local/does-keith-schembris-opm-contract-contain-conflict-of-interest-rules.627308

Canvasser made delivery of 9 million euros in checks Sunday Times of Malta 11/12/16
Transparency International Corruption perception index 2016
Study shows political corruption at the PA Times of Malta 29/10/17
The Global Competitiveness Report 2017-2018
Will the chickens come home to roost in 2018 Times of Malta 08/01/18
Ombudsman Report 2016
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