The Malta Independent 25 September 2018, Tuesday

INDEPTH: Law faculty dean believes more autonomy needed in selection, removal of judiciary

INDEPTH online Friday, 15 December 2017, 16:15 Last update: about 10 months ago

Dean of the Faculty of Law Kevin Aquilina believes a more autonomous system for the appointment and removal of members of the judiciary in Malta, without any intervention of the executive.

Interviewed by The Malta Independent editor-in-chief Rachel Attard, he was answering a question related to calls for the removal of the Attorney General and the Police Commissioner, where on the one hand they are appointed by government but then cannot be removed by the Prime Minister. “In the case of an appointment, it is the Prime Minister who appoints. In the case of removal, Parliament removes an AG and the Public Service Commission removes the Police Commissioner.”

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He then turned to the judiciary. “Who really appoints members of the judiciary? The President on the advice of the Prime Minister. Since 2016, there is now a mechanism in place to scrutinise applications. Before that date there was no mechanism and the President appointed them directly on the advice of the Prime Minister. In April, Chief Justice Silvio Camilleri will retire. With the 2016 amendments the position remained the same, that there is no need for whoever will be appointed Chief Justice to go through the vetting process of the Judicial Appointments Committee. So it still remained in the hands of the Prime Minister to decide who is appointed Chief Justice, by giving advice to the President, who is Constitutionally tied to adhere to that advice.”

He mentioned the Bonello Commission report, “where we proposed changes to the appointments, discipline, training and removal of members of the judiciary.”

He drew attention to the removal of judges, highlighting that “while we talk about 2/3rds Parliamentary majority the EU Court of Human Rights has a number of judgements which state that Parliament cannot remove a member of the judiciary from their post, as Parliament is not a court or an independent and impartial tribunal. So if one removes a judge or magistrate from the bench, I am sure that if the judge or magistrate were to go to our courts or eventually the European Court of Human Rights and challenge his or her removal, Parliament would need to change the Constitution as it had to do when it had the Demicoli case, having to amend the Privileges and Powers Ordinance.”

 

Aquilina believes that Malta should move towards the continental system, “where judges are appointed by members of the judiciary themselves, where there is separation of powers and the executive does not interfere in the appointment, discipline, training or removal of members of the judiciary, where the judiciary regulate themselves.”

Aquilina also criticised Mr Justice Silvio Meli's decision to comment on a British law firm's opinion regarding the human right of the Caruana Galizia family, stating that such comments were made at a premature stage.

Mr Justice Meli is presiding over a Constitutional case instituted by the widower and children of slain journalist Daphne Caruana Galizia for the removal of deputy police commissioner Silvio Valletta from the investigation into her assassination.

The services of UK law firm Doughty Street Chambers were sought by the Caruana Galizia family. The firm had advised the family that the investigation into the assassination violates procedural requirements of Article 2 of the European Convention on Human Rights (ECHR). Mr Justice Meli, on Tuesday, described the British law firm's opinion, that the Caruana Galizia family's human rights have been breached, as a "manipulative orchestration" aimed at undermining Malta's rule of law and to influence the judiciary.

Aquilina said that if he was the judge he would not express himself on these issues, "more so if the document in question is not presented as evidence in court. At that stage I would have left things as they were, in the sense that I would have tried to mediate - as in fact he did - giving the parties the opportunity to try and agree and arrange the case between them. Then if no agreement is found the evidence would begin to be heard and then one can go into that advice, but I think it was a bit premature to express oneself on the advice when it was not yet produced and exhibited in the acts of the case."

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