The separation of powers is one of if not the most crucial underpinnings of any democratic system.

But that separation, when it comes to the executive branch of government and the judiciary in Malta, is becoming difficult to determine. And in fact some say does not effectively exist at all, when members of the country’s judiciary are appointed to the bench by the government of the day.

Not only that, but magistrates are promoted to judge by the government of the day, and those appointments are life-long, with only a two-thirds parliamentary vote being able to remove them.

The situation is concerning on several fronts, not least of which are both the real and the perceived independence of the judiciary, especially when it comes to politically-tinged cases.

Justice must be done, and it must also be seen to be done. But the current situation in which members of the bench can be perceived as indebted to the politicians who appointed them is not only dangerous on a material level, but also on a reputational level. 

The people must be able to have absolute trust in the courts, which is very often a citizen’s last resort and defence against injustice and the current, age-old method of judicial appointments does little to foster such trust.

This, however, now appears set to change after the justice minister told our sister Sunday newspaper last week that, following a recent scathing assessment of the state of Malta’s rule of law by the Council of Europe’s Venice Commission, the government will step away from judicial appointments, which will be left in the hands of a newly-reformed Judicial Appointments Committee.

As matters currently stand, that Committee – made up of the chief justice, auditor general and the ombudsman, amongst others - vets applicants for the bench and draws up a shortlist from which the executive appoints judges and magistrates.  With the upcoming reform, the government will be extracted from the process, meaning that judicial appointments will, at least on the face of it, be made without the interference of politicians.

Before that, and prior to more recent reforms, judges and magistrates were, in an even more abhorrent set-up, appointed directly by the Prime Minister. And let’s face it, what government would look such a gift horse in the mouth?

Well, at least the good people on the Venice Commission certainly did, and the government appears to be responding pretty quickly to their multiple concerns over the state of the rule of law in Malta.  If only for the promised revamp of judicial appointments, the country owes an enormous debt of gratitude to the Venice Commission, and to whoever initially drew the Commission’s attention to the state in which Malta currently finds itself, which warranted no less than the full assessment that was delivered.

But then again, one must ask how quickly is it responding exactly? Not quickly enough, it would seem.  The more cynical will say that the deeds have already been done, that the courts have been captured, and that with just a few more retirements from the bench, the government will have managed to capture that institution as well as practically every other institution.  Some would say that is why the current government is so willing to go down this route, and why it is not giving an exact timeframe.

And for example, why did the government not go the whole hog at the outset, and partially reform the method of judicial appointments, only to bend to the will of democratic norms only after it was prodded so publicly to do so by the Venice Commission.

What it shows is that that first move was merely cosmetic and aimed at retaining the power of judicial appointments ultimately in the hands of the executive for as long as possible.  The game being played here is using the country’s very rule of law as a board.

The political track record of the judiciaries appointed by this government, one having been the deputy leader of the party in government no less, speaks for itself.

If the judiciary were to fall to political machinations, and if the Venice Commission’s recommendations are not taken fully on board, it would be the last bastion of the state that has not been captured by the current government.

And that would be a tragedy for the country and its democracy.