The Malta Independent 27 May 2019, Monday

TMID Editorial: Justices delayed is justice ensured

Wednesday, 17 April 2019, 11:17 Last update: about 2 months ago

The adage goes to the effect that justice delayed is justice denied, but with the government apparently about to make a number of judicial appointments before it implements the Venice Commission’s recommendations on how members of the bench are appointed a more suitable adage would be: justices delayed is justice ensured.

The fact that three magistrates are to be promoted to judge while three new magistrates are set to be taken on board is, under normal circumstances, pretty much run of the mill stuff.

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But when set against the backdrop of the questionable state of the rule of law in the country, and we are far from the only ones calling it questionable, the fact the government appears bent on making these final appointments while it still retains the faculty to directly appoint and promote members of the bench.

The truth of the matter is that the government appears to be slipping these appointments through the door just as it about to slam shut for reasons best known to itself.  This is in no way indicative of any of the judiciaries’ or prospective judiciaries’ inherent qualities, or lack thereof, it is simply about another of those age-old adages: that justice must not only be done, it must also be seen to have been done.

That is exactly why these 11th-hour appointments smack of yet more of the same old client-patron, state capture tactics at which we excel so grandly - when 16 out of the last 17 appointments to the bench were all relatives of party politicians, cronies of ministers or are somehow political intertwined. 

NGO Repubblika, in a judicial protest signed by Opposition MPs Simon Busuttil and Jason Azzopardi this week, is seeking to prevent the government from naming any new judges or magistrates under the ‘old’ system of appointments which it says threatens the very independence of the judiciary.

But, according to one of the country’s foremost legal scholars, Judge Emeritus Giovanni Bonello, of similar concern is the fact that the judiciary is now so packed with friends of friends that the problem will just keep self-perpetuating, even if the system is changed.

And when we have also the dean of laws weighing on the debate in an equally concerned way, we know we have a problem.  When he says the judicial appointments will require at least two generations to address and to achieve the right balance, we know we have an even bigger problem before us, for at least two generations.

Not only does the system of appointments need to be rectified from here on in, but past wrongs must also somehow be set right lest we are to suffer the brunt of those partisan decisions for decades to come.

Venice Commission has lambasted the Prime Minister’s power to influence judicial appointments, saying it ‘opens the door to potential political influence, which is not compatible with modern notions of independence of the judiciary’.

The writing is so clearly on the wall that the government now intends to tip the balance one final time before that power is, quite rightly, stripped from the executive through the insistence of the Council of Europe’s Venice Commission.

Repubblika, thankfully, is seeking to scuttle that last effort by the government to tip the scales in its favour one last time.

In its protest – filed against the Prime Minister and the Justice Minister - the NGO rightly points out that the current system of appointments is dependent on the ‘absolute discretion’ of the Prime Minister, as pointed out so ably by the Venice Commission; and it is in breach of the EU treaties, as well as the European Convention on Human Rights and Charter of Fundamental Rights of the EU.

In one of its primary recommendations, the Venice Commission had insisted that vetted and ranked applicants for magistrates or judges should be recommended by the Judicial Appointments Committee directly to the President.  Whether the government intends to fully implement this is another question given the lingering judicial appointments.

And with the government being seemingly more than obliging in taking the Venice Commission’s recommendations of judicial appointments on board, and having blamed the state of affairs wholly on its predecessors, one would have though the government would have had the goodwill to hold off on the appointments until a new system is in place.

But given its reluctance to do so, the question is: Why this one final sleight of hand?

This editorial was published in The Malta Independent printed edition
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