The Rule of Law in Malta: In Conversation with Jenny Orlando-Salling

In the latest RevDem Rule of Law podcast, Oliver Garner discusses the current state of the Rule of Law, democracy, and corruption in Malta with Jenny Orlando-Salling. Jenny is a Ph.D. researcher at the University of Copenhagen, and she previously worked at the Permanent Representation of Malta to the EU and as Deputy Head of Mission and Consul to the Embassy of Malta in Egypt and Sudan.

Oliver Garner: Europe and the world were shocked by the murder of the Maltese journalist Daphne Caruana Galizia in 2017. How would you assess the current situation in Malta in terms of Rule of Law, democracy, corruption, and freedom of the press?

Jenny Orlando-Salling: Before I dive into that question, I really would like to give just a little bit of context about what I’m talking about because the rest of the conversation we’re having probably won’t make any sense to listeners who haven’t previously encountered Malta.

Malta was a former British colony up until 1964. It is now an active member of the Commonwealth. Religion plays a major role in the country, so Catholicism is enshrined as the state religion in the constitution. It is taught in schools and the continued power of the Catholic Church has meant major restrictions in terms of social progress – for instance, Malta only introduced divorce into its Civil Code in 2011. It is the most restrictive EU Member State and one of the most restrictive countries in the world in terms of abortion laws with near blanket criminalization and very tough criteria to procure an abortion in the country. So, Malta is deemed to be extremely conservative.

It is a tiny country: 316 square kilometres, which is the 10th smallest country by area and the fourth most densely populated sovereign country in the world. It is considered by many to be just a city state. Everyone knows everyone, which we’ll touch on later. Its population is 510,000, with massive population growth in the last two decades from 390,000 in 2000. That is a major demographic change with 22% of the population now being described as non-Maltese.

We joined the European Union in 2004.

Politics is everything in Malta. It is in the bars, it’s on our pjazzas, in our churches, and in our schools. Politics is the lifeblood of the nation.

It’s almost considered to be something that is integral to family life as well. Public and private domains interact in that way. The two major parties in the country in the bipartisan system are the Nationalist Party, which is a Christian Conservative Party, and the Labour Party, which is now the ‘ruling’ party in government. The Nationalist Party was in government for 23 years (give or take a couple of years) before the Labour Party in 2013 won a major victory on, ironically, the anti-corruption ticket.

There are third parties, but these are miniscule in comparison and people are effectively raised to ‘support’ blue or red. This basically dictates every decision that is made politically, and it means that every single decision made by the government is very much felt by the people. There’s a lot of proximity to politicians, as well as politics.

The Rule of Law is something that has only come to the fore since Daphne Caruana Galizia’s assassination.

Daphne was murdered on the 16 October 2017 after an explosive device was planted under the seat of her car in Malta. This was very much the first time that the Maltese public really had any ‘daily-bread’ notion of the Rule of Law, which was brought up largely because of international outcry.

This obviously emboldened what were muted civil society responses, or the ability to even act against corrupt practices. The view in Malta was: what is this? why does it affect us? Daphne herself, to many, represented the very polarized political view in Malta of the Nationalist Party versus the Labour Party. That meant that, alongside her excellent work, there were a lot of gossip- column type pieces that meant that she was very much hounded by the public (with their proximity to the political classes) and hounded by the political classes themselves. She was often accused of classism and hate speech, and this is one of the things that hampered her investigative journalism, and its reputation domestically. That is why there continues to be this kind of distance from much of the population to the case.

So, since that dented her reputation domestically, it made it very difficult for her to get recognition for what was going on in Malta – the major Rule of Law issues that we had and the corruption scandals that were bubbling under the surface. Her death and her assassination broke everything wide open. That plunged Malta into a major political crisis that I would argue has probably never been seen before, especially not since independence.

We’ve had major crises in the 1980s especially and in the late 1970s, but this was something where the Maltese public had to reckon with its own political culture for the first time under the watchful eye of the EU and the international community.

I think that was a never-before-seen situation.

An independent public inquiry was launched (very late) two years later, and it ended in July 2021. It concluded essentially that the state should bear ultimate responsibility for the assassination of Daphne Caruana Galizia. We still do not have full implementation of the recommendations of the inquiry, and they have been mostly brushed aside. The terms of reference that were put forward were followed to a certain degree in some respects, but the process has been described as deeply untransparent and inaccessible. Alongside the public inquiry, there was also a committee established in relation to reform on issues related to the media. This has also been described as slow in its reform and untransparent.

Despite the 400 plus page public enquiry report, meaningful legislative steps to address the recommendations put forward have effectively not taken place. This was the case both for the inquiry and the expert committee appointed to oversee these media reforms. On the subject of the press more widely,

Malta remains one of the countries with the highest number of strategic litigations against public participation (SLAPPs) per capita in the European Union. Some steps have been taken to address this in terms of freedom of press, but they are not meaningful enough.

We continue to be faced with major complaints from international bodies and NGOs about these limitations, and despite welcoming some progress, these are described as not being far reaching enough. Ultimately, even though there has been some progress, the implementation has often also been half-hearted and half-baked. This makes it difficult to measure progress and to observe meaningful progress in the area. Ultimately, my argument would be that if you put in legislation, and there is no domestic reform in education around that legislation, the implementation is always going to be half-hearted and cannot be meaningful. You cannot really address Rule of Law, democracy, and corruption even if you bring in legislation to counter problems and to strengthen Rule of Law and democratic practices. Unless there is buy-in domestically, you’re not going to really go anywhere.

A lot of the answers to my questions will also turn on this. Ultimately, domestic literacy in this regard is limited at best. It is growing, obviously, because of appearing repeatedly in our newspapers. On the streets, people talk about this new issue of the Rule of Law, but ultimately, there is no tangible understanding of what it is.

This is a culture that has been ingrained over hundreds of years of occupation and colonization, and its relationship with the Rule of Law has very much been intrinsically linked to this occupation and colonization with people trying to find a way, essentially, to survive.

People say, “this is the Rule of Law, yes, but the Rule of Law means that my family is going hungry, my family is staying poor, my family can’t get a job”, and so on. That is the connotation that we’re dealing with here on the ground. Even though people would not know necessarily that this was the Rule of Law, they still see that they are having to work around rules and legislative structures that preclude them from getting where they need to be, for better or for worse.

Since Daphne there has been a marked change in the way, domestically, we talk about these things. The current situation in Malta remains incredibly fragile in terms of where we’re going and the future of our democracy for multiple reasons that are related to the Rule of Law specifically but that are also related to several issues including lack of constitutional reform, This also has allowed things to descend to the state that they’re in. It is a vicious cycle of loose ends.

It is really fascinating to hear about how embedded politics is in Maltese society, but perhaps without there being a corresponding Rule of Law culture.

More broadly, Laurent Pech and Kim Lane Scheppele have defined Rule of Law backsliding as “the process through which elected public authorities deliberately implement governmental blueprints, which aim to systematically weaken, annihilate, or capture internal checks on power with the view of dismantling the liberal democratic state and entrenching the long-term rule of the dominant party”. You spoke in your last answer about the problems facing Malta with regard to the Rule of Law. By the metric proposed by Laurent Pech and Kim Lane Scheppele, do you think that Malta is undergoing rule of law backsliding?

I think this is going to be a controversial answer and I really racked my brains to try and find it – I am no Kim Lane Scheppele and I am certainly no Laurent Pech!

But my answer is short and simple: no, I do not think there is backsliding in Malta, I think it has been this way since time immemorial. It has been this way since well before these ideas of the Rule of Law were even developed, at least to this degree in the EU context. When we see the corrupt practices taking place now, I think the only difference is that the fight against corruption obviously rages on, as well as justice for Daphne’s assassination, but it has not necessarily gotten worse.

I think that what has happened is that the tools we have to uncover corruption, including our civil society, journalism, freedom of the press etc, have just gotten much better at exposing what is going on.

This has much to do with Daphne’s legacy.

Daphne was unique in that sense because she was the only one essentially standing between the government and corrupt practices. But this was the case [the existence of corruption] also before the Labour government. As I said, the irony is that the Labour government contested the 2013 election on the anti-corruption ticket. So even though it became synonymous with corruption in the eyes of the international community, the Labour government headed by Joseph Muscat initially positioned itself against the corrupt practices of the Nationalist Party, after almost 23 years of their rule. These practices included the oil and gas purchases scandal which saw senior officials of the Nationalist Party purportedly receive major kickbacks following oil procurements. We will never know the breadth and degree of corruption that was taking place under the nationalist government, but it was there – it was very much alive, and very much kicking.

So, the tools that are there to uncover corruption are much better, but I do not think there has been Rule of Law backsliding by this definition. However, the situation is dire: from Panama paper investigations to kickbacks on energy, vote buying, money laundering, tax evasion, and fraudulent intent in terms of privatization of its hospitals are all corruption scandals that are ongoing right now as we speak, and investigations into them are also ongoing. But these things were also taking place before now. We’ll never know the degree to which they were happening because this is a discussion we would be having in retrospect and in hindsight, rather than in the present tense.

High-level and low-level corruption have been taking place in Malta and Rule of Law deficiencies have been observable in the country essentially since it became a state (and before).

I do not think that there is backsliding necessarily; I think that we have just gotten better at recognizing corruption, at naming what it is, and pointing it out.

We have, though, not gotten terribly good at combating it, but we at least have a small but significant space to look at what is going on and to combat it, and to try and face up to the situation in Malta to try to better it, from the point of view of civil society. But we have a very long way to go.

I think your answer points towards the potential nuancing of our understanding of Rule of Law weaknesses in different contexts. Whereas the Rule of Law backsliding paradigm has really arisen in a post-Soviet Union, post-totalitarian environment in Central and Eastern Europe, maybe there is something different in the post-colonial context with Commonwealth countries.

Very much so. There are obviously allusions and analogies that can be made. One of the things that I find most interesting about the Maltese case, as I’m also studying Hungary at the same time and in parallel, is that I can make those connections. That history very much plays a major role in the way we have pursued these conversations and the way we continue to categorize countries, and in the way we try to make what I believe to be immeasurable measurable. That is why I am a proponent of looking at context, looking at history, and trying to understand what role it plays in this situation.

History should not excuse what is going on but it does provide a meaningful explanation that gives those combating these Rule of Law perversions a space to explain and tackle their situation domestically in an informed way; one that is seen as a problem-solving exercise, rather than just a shaming exercise.

Part of the problem of why we have not gotten very far and, if anything, we see more and more backsliding, is because those who are repeatedly saying “you’re not listening to us” are just not being heard.

We are forging ahead with difficult and very black and white definitions of what a Rule of Law crisis is, and what Rule of Law means does not necessarily compute across the EU. It is a very ‘core’ Member State understanding of what Rule of Law is.

It does not account for the discrepancies in institutions and institution- building approaches, the state of institution building, the state of progress, and in the post-colonial and post-Soviet context etc. That means that we often do not separate the wheat from the chaff, and we are not able to see the picture for what it really is and account for all the variables that are in in play, and that make the situation what is really is.

On that theme of comparisons and the broader context of EU membership, you have written recently for Verfassungsblog about a Maltese judgment that could be seen to challenge the primacy of EU law. How does that judgment compare to other challenges to primacy from different Member States? Is it closer to the PSPP decision of the German Constitutional Court, or the K 3/21 judgment of the Polish Constitutional Tribunal?

I find it difficult to reduce something to a binary, and comparative binaries risk missing crucial nuances. I believe it limits our ability to take tailored and therefore effective action to analyse, talk about, and ultimately act on a given situation. In the Michael Felsberger case in Malta, which was decided in July 2023, we saw elements of the PSPP judgment. But, again, it is just completely different.

Germany is not Malta. Malta does not have the same safeguards that Germany has, and Malta is not in the same position that Poland is in. The case arises from a completely different point of view, and for all intents and purposes, this was not, on the face of it, a political decision.

I argue in Verfassungsblog that it was effectively an issue that the lack of constitutional reform allows situations such as this one to persist. It allows the Constitution to be manipulated, and it leads to the problems we have with separation of powers, which are again a colonial inheritance and something that has not faced significant reform in the last 60 years. It allows judges to do things like this. This was a situation where we had never before seen a blow to the primacy of EU law in the Maltese context – it is an unspoken code that this would never have happened. But, ultimately, the lack of constitutional reform meant that it could always potentially happen and everyone was in a wait-and-see stance. Now that it has actually happened, domestic reactions have been completely muted because, effectively, they do not know what to do. This is major. If it goes forward to the next stages, and the case is decided along the same lines, it is going to be huge. I think that everyone is in the brace position waiting to see what is going to happen.

But it was very clear that the constitutional environment that has been created, not necessarily because of the immediate Rule of Law crisis, but because the constitution has been this way for the last 60 years since we gained independence from Britain, allowed the situation to happen. Because of this, the judge was able to weaponize the constitution against the EU. That is one of the reasons why I do not want to compare it to the PSPP or K 3/21 decisions.

I think that it is very interesting, in and of itself, that we have a case in the EU where colonialism’s handprints are all over the Rule of Law issue.

It makes a case for us to argue that this exists not just in Malta, but also elsewhere in Europe and could have, and is having, a continued material impact on the way Member States engage with the EU, not just in legal terms, but also in symbolic terms. I argue in Verfassungsblog that this is a case where we really need to look at what long-standing colonial handprints can do and how they can be weaponized against the EU.

However, the context in Malta is what it is. I cannot say it is descending into craziness because it has been incredibly difficult for a number of decades. The breadth of corruption is quite literally breath-taking. I do not want to compare it to other decisions, but if I had to, I think it is more like the PSPP decision than anything else. I do not think that an actively anti-EU stance was taken. Instead, I think that it was a pro-industry, pro-gaming, and pro-protectionist stance.

At the moment, I cannot see any reason not to stick to that argument despite there being, for instance, less of a pro-EU position taken by the Maltese public than ever before. We have seen a 40% decrease in pro-EU sentiment over the last year alone in Malta. I do not think that this was part and parcel with the outcome in this case. But, again, I can’t tell for certain.

It is really interesting to hear how this gap or opportunity for contestation can come from a discrepancy between constitutional text and legal and political reality. I think that is a really intriguing thing to consider for the future and potential similar judgments.

On that topic of court judgments and EU law, the so-called “principle of non-regression” from the Copenhagen criteria following accession to the EU for Member States was actually proposed by the Court of Justice of the EU in a case concerning Malta – the Repubblika judgment. What is the current situation concerning the appointment of judges in Malta? Could the courts be regarded as captured in the same way as in Poland and Hungary, or do you believe again that this is not reflective of reality?

I think it is again a very difficult question to answer. As the Repubblika judgment itself stated and made clear, progress has been made in Malta since accession to the EU. It was one of the reasons why in this case regression could not necessarily be observed. The Judicial Appointments Committee in Malta, which was set up in 2016 in accordance with Article 96A of the constitution, is put in place essentially to make these judicial appointments. The issue turns on the role of the President in electing these judges or magistrates exclusively from the names of the three candidates that are transmitted by the committee. So, the influence of the executive remains strong.

As I surmised from the Repubblika case, unilateral use of executive power to appoint judges is not necessarily a bad or incorrect thing – we see many examples of this across the continent and beyond.

But we do not need to go very far to understand the politicization of judicial appointments in the Maltese context.

Again, progress on the ground has been slow and not far reaching enough, for example, in terms of the involvement of the judiciary for appointment of the Chief Justice. These recommendations were put forward by the Venice Commission and then communicated in the European Commission Rule of Law report for 2022. Addressing the need for the involvement of the judiciary in this procedure has been essentially non-existent. Even though changes have been made, these have not been far reaching enough.

We come back to the issue of the inflated role of the executive in Malta: why does this role of the executive continue to be so enormous by comparison to other countries, and why is separation of powers so problematic? One of the reasons is lack of constitutional reform.

Constitutional reform requires us as a nation to understand what our position as a modern EU Member State is on issues like the Rule of Law and democracy. What do we want our Member State to look like? At the moment, we are basically navigating with a blueprint that was handed to us and that makes it very difficult to amend and adjust the constitution according to how we want our nation state to be designed and what we want it to look like.

So, I do not consider the courts to be captured in the same sense as we see in the Polish case, but even that conclusion has its significant nuances. In the Maltese case, of course, there are political links – these are completely blatant and in your face in many respects. But there is also the argument that, as long as the legal system and our constitutional framework are designed the way they are, it will allow for these things to happen too. Obviously, it is in the best interests of the political classes on both sides to maintain this degree of power, and by design this political leverage will continue to exist precisely because having that kind of political power is an invaluable tool for a political party. That is the sad reality. We all know what the Repubblika case elicited, at least for the Maltese context, but it was not necessarily surprising.

As long as we stay the way we are, and as long as we do not engage in meaningful reform, our judicial appointments system will remain a constitutional mess… and the system will remain weak.

Moving on to some of the other mechanisms that are in the EU’s increasing Rule of Law enforcement toolbox, we have seen that the Rule of Law conditionality regulation was activated against Hungary. Despite the origins of this mechanism as a pure Rule of Law instrument, it is now tied strictly to the protection of the EU budget and may be regarded as an anti-corruption instrument. We have been discussing some of the issues around corruption in Malta, so do you think there’s any prospect at all that the regulation could be used against Malta in the future?

I doubt it. Again we have to know a little bit of the context of what was going on in Malta at the time of the last EU budget negotiations around 2020. We had the Daphne Galizia public inquiry, our Prime Minister stepped down, and we had multiple corruption scandals unfolding at the same time, including the “Golden Passport” scheme which really gripped the EU public’s attention. Negotiations took place over two years before coming to the final conclusion, which was that Malta would actually, apparently, be given more in terms of an allocated sum. In fact, the Prime Minister (Robert Abela) argued that it was double what was allocated to Malta in the past package, which was negotiated in 2013. He made the argument that these allocations were made on the basis of six months’ worth of progress in terms of the Rule of Law reforms achieved by his government. The Prime Minister argued that these reforms were considered to be “enough” by the EU to achieve the final outcome of these budget negotiations. And, therefore, in terms of the Rule of Law conditionality, I think that speaks volumes about whether or not this is going to be levelled in Malta’s regard. I do not think so. Another interesting thing is that during the budget negotiations in 2020, it was reported that Malta actually argued that it was at the forefront of establishing this conditionality mechanism, and it was one of the main Member States arguing for its introduction.

So, no,

I do not think that it will be activated against Malta. But I think that the Commission will continue to follow Malta very intently.

I also think that Malta sometimes gets away with things because it is so small, and it is not a “sexy” enough case to bring forward. Again, because I do not like false equivalencies, I won’t compare Malta to Hungary, I won’t compare it to Poland, and I won’t compare Poland to Hungary because they are two separate cases. The situation has to be judged on face value. I think that Malta could qualify for these kinds of restrictions but I do not think that it will. What happened in the last negotiations speaks volumes for what would happen if they did. Ultimately, Malta was given a space to make changes, it made some changes, and even if these were not far-reaching enough they were enough to go forward. During that time, there were very heavy criticisms of Hungary and Poland, so the focus remains on them and that interesting in and of itself. Why is that the case? Who knows.

For our final question I thought that we could return to some of that background context that you provided so informatively at the start of our interview. In your Verfassungsblog piece, you argue that the lack of full separation of powers in Malta may be caused by the difficulties of having such a small population. Do you think that the independence of institutions and the avoidance of personal interference is made difficult by the fact that the ruling classes are so small in number? And, if so, can safeguards be implemented to mitigate this effect?

In answer to the first question, yes, of course, conflicts of interest and personal interference are obviously made difficult by the fact that we are a population of 500,000 people. We went to the same schools, we grew up together, we are often related to each other, and if we are not related, we are related to the relation of someone else. This sounds trite and silly to say, but this is Malta, this is how Malta has always looked and will always look. It is a small country with a very small population.

That does not mean, of course, that things cannot be done to mitigate the situation on the ground. Obviously, conflict of interest does not necessarily mean corruption – it is not equivalent. It is a situation that can very easily, but not necessarily, lead to corruption. In the Maltese context, it often does, but also there are instances where obviously it does not and instances where people can separate one from the other.

So, yes, it is extremely difficult to remove conflict of interest in Malta completely. But that should not be an excuse to avoid the bolstering of good governance practices, transparency, ethics codes, accountability mechanisms, general reforms aimed at limiting personal interference and putting in place a robust anti-corruption reform that is meaningful, and far reaching – one that changes the way we operate in our government and the way we interact with our institutions both bottom-up and top-down.

Almost none of this has been done and only very little initiative has been taken again. These small steps, and they have been described as small steps by presiding bodies like the Venice Commission, are sometimes being ridiculed by the population because I think the people are desperate to understand, which direction they should be going in order to comply and in order to truly understand how this Rule of Law concept applies in their daily lives.

However, without a sea change from the grassroots level in how we interact with our institutions that is not going to happen. So, again, I come back to something I said earlier: legislation is something that is nice to have; it is good to have robust legislation that puts in place Rule of Law and democratic safeguards, and anti-corruption mechanisms.

But ultimately, a wholesale review is required, and how we interact with our institutions needs to change because corruption, nepotism, and clientelism are happening.

They are happening because people are engaging in it – and it is so widespread because people choose that way forward. We also need to understand that the people have a big hand in what is going on and that also needs to be addressed.

Any legislation has to be accompanied by education and a comprehensive understanding of how this intrinsically impacts the way our life and society works, and the health of our democracy overall. This is why context is important and needs to be at the forefront of considerations in the Maltese case (and all cases) because proximity is ever-present and it is in every aspect of our lives in the country.

This transcript has been edited for length and clarity.

In collaboration with Karen Culver.

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