Maltese murder - the next rule-of-law crisis in EU?

The European Parliament demanded that the EU Commission launches a rule of law dialogue, a first step towards an Article 7 procedure that could end in Malta losing voting rights in the EU.

It may be too early though.

After two years of standstill, the inquiry jumpstarted last month with shocking revelations concerning the involvement of the members of the Maltese government and a swirl of questions regarding the role of prime minister Joseph Muscat, who declared that he will step down this month.

His innocence and his competence in overseeing law enforcement are in doubt.

Yet, Malta's problems are not easily comparable to those in Poland and Hungary. They are worse in some respects and better in others.

In contrast to Poland and Hungary, in Malta, no ruling party or government is trying to systematically subjugate the judiciary in order to exert political control over it.

It is not a matter of authoritarianism. It is worse, however, because weaknesses in its rule of law and serious problems with corruption at high government levels have resulted in the brazen murder of a journalist.

Where does that put the European Union? The current toolbox for preventing the backsliding of the rule of law assumes that the EU reacts to 'systemic' issues with the rule of law.

Malta has such issues, as the Venice Commission of the Council of Europe already pointed out in December 2018.

It stressed, in particular, the lack of proper checks and balances, stating that "Taking also into account the prime ministers strong position in judicial appointments (…), crucial checks and balances are missing."

The prime minister holds the bulk of executive power with the president being more akin to his counterpart in Germany. On paper, the president appoints the judges and the chief justice of Malta on the basis of advice by the prime minister.

In reality, the president only rubberstamps the prime minister's picks. Despite the recommendations from the EU and Council of Europe's Venice Commission towards establishing a stronger mechanism towards ensuring checks and balances in judicial appointments, no independent body of judicial self-governance ensures that judges exercise of power over their own matters.

Size matters

Malta can solve its legal and institutional challenges, but there is a challenge, which it cannot solve – its size.

With a population just shy of 500,000, it is no bigger than a medium-sized city in Germany or the UK. And in politics, close connections count.

Networks, be it familial, friendly or professional, are dense. When we talk about the judiciary in Poland, we talk about 10,000 judges. Malta has 24 judges, 22 magistrates, and one chief justice.

You can gather the upper echelons of Malta's three branches of government at a garden party. This level of proximity makes it even more imperative to strengthen institutional checks and balances.

A country that respects the rule of law can prosecute the powerful.

In Portugal, former prime minister Jose Socrates is facing charges of corruption, even though his own party is in government.

In the Czech Republic, prime minister Andrej Babis faces investigation.

In contrast, in Poland, where virtually the entire law enforcement is centred around the minister of Jjustice Zbigniew Ziobro who is also the prosecutor general, investigations into alleged crimes and misdemeanours by politicians from the ruling party are initiated – and then, dropped.

In Hungary, the misuse of EU's taxpayers' money by well-connected people has been pointed out by EU agencies but the Hungarian authorities have not charged anybody.

The sudden momentum behind the Galizia case may suggest that Malta can solve its issues by itself after all.

If the European Commission wants to wait a bit longer, it should, however, make it clear to Maltese partners that a swift resolution of criminal cases, together with an overall strengthening of checks and balances in line with the Venice Commission recommendations, is the only way to avoid the start of the pre-Article 7 dialogue.

The dialogue might seem as a light measure, but it in fact is the first step on the road to triggering the Article 7 procedure.

One should not overuse it, as the possibility of ultimately depriving a member state of its vote in the Council is not something to be invoked lightly.

But if Malta will find itself unable to handle the murder of Daphne Caruana Galizia and will thus prove that its constitutional system has indeed eroded to the point where the country is unable to respect the rights of its citizens, entering a rule of law framework dialogue followed by the eventual triggering of the article 7 procedure against Malta would become unavoidable.