The government simply cannot continue to put off the repeated calls to undertake a drastic reform in the way in which members of the judiciary are appointed in Malta.   Even more so when this was one of the main recommendations from the commission, headed by former European Court of Human Rights Judge Giovanni Bonello, which the government itself had appointed to draw up proposals for the reform of the justice system.

In a nutshell, Malta is one of the only - if not the only - countries in the democratic world where members of the judiciary are appointed by the executive branch of government, i.e. Cabinet, at its sole discretion and behind closed doors.

It goes without saying that this is a democratically-unsound and far from transparent process – so much so that the Council of Europe has blasted Malta for its lack of a formal appointment process, with no invitation to apply and no interviews being held.  It warned just this year that the situation creates the widespread perception that judges are not appointed because of their “suitability” but for “reasons of influence”.

The government has said that it will make changes to the judicial appointment system but has so far not detailed exactly what changes it has in mind or when they will be implemented. 

In its report, the Bonello Commission had proposed the establishment of a Judicial Appointments Commission, which would recommend to the government the names of people it deems fit to be appointed judges and magistrates. That Commission should be appointed by the President and have six members.  The Bonello Commission had also recommended that there be a public call for applications each time a judicial vacancy occurs.

Let us be clear that this is not an issue of the current government’s making, and this less than desirable state of affairs predates not only the current but several legislatures.  This situation is more than convenient for any government of the day and, it could be reasonably argued, that is precisely why successive government after government has been reticent to address the issue.

This government has, however, pledged to drastically reform the justice system and as such the ball is currently in its court.

It goes without saying that this cosy arrangement leaves ample room for political leverage - before, during and after the appointment of a magistrate or judge - with dire consequences for the separation of powers required for good governance.  This requires as a basic vesting the legislative, executive, and judicial powers of government in completely separate, independent bodies.

The fact of the matter is that even if that leverage is never applied, the possibility is still there.  The mere existence of leveraging power is enough to erode one’s faith in the judiciary, most particularly when it comes to cases of a political tinge, as the Council of Europe points out.

The Chamber of Advocates president yesterday did not mince his words yesterday when he said: “The executive must relinquish its unfettered right to appoint members of the judiciary”.  Advanced democracies in which the executive branch of government is still involved in the selection process, he pointed out, have systems with various checks and balances but what we should be aiming for is a complete separation of powers.

The Chief Justice, for his part, yesterday stated that while he believes the choice of the countries judiciaries should remain in the hands of the executive, the process must be made more transparent.  Along these lines, he suggested that such selection processes are started earlier so that appointments could be discussed by the Commission for the Administration of Justice before the final appointments.

It is high time that the government – now that it is thankfully now committed to reforming the process on at least some level – takes the bull by the horns and brings the country one more step toward being a fully-fledged democracy by clearly separating the executive and the judicial branches of government.