The recent appointment of Dr Anna Felice to the bench has raised very serious and fundamental concerns as to the constitutionality of her appointment. Article 96(2) of the Maltese Constitution indeed provides that a person “shall not be qualified to be appointed a judge of the Superior Courts” unless such person shall have “practised as an advocate in Malta” for not less than 12 years. The Constitution is clear on this point and this minimum qualification is mandatory and permits no discretion to any minister.

With reference to the current system of appointing judges by the Executive, Dr Carmelo Mifsud Bonnici (Parliamentary Secretary for Justice) has been quoted as saying that “the system has worked”. However, the authority of the Executive is not absolute and is derived from, and is subject to, the Constitution. It is self evident that the Executive in a constitutional democracy as is ours, is not above the Law.

I assume that the text of the article quoted is familiar to Dr Mifsud Bonnici and to the Cabinet. Indeed, it is usually not called into question because nominees for the Bench are fielded from legal practitioners. This issue did, however, arise when Dr Andre Camilleri had been nominated. In that case your readers may recall that the nomination was referred to the Commission for the Administration of Justice, which immediately raised its concerns about the constitutionality of the proposed appointment. As matters developed at the time, the Commission was prevented from intervening further but Dr Camilleri ethically and professionally eventually declined to accept the nomination. In the current case, the Commission was bypassed absolutely.

The constitutionality of the appointment of a member of the judiciary cannot be left to doubt. The judiciary is one of the pillars of our democracy and its members must be validly and constitutionally appointed. If not, that very appointment is null and consequently, any judgment, decree or judicial act pronounced by that judge would be null and open to challenge. Furthermore, it sets the precedent for future violations of the Constitution by any Parliamentary Secretary or Minister who can broker total silence. Serious accountability and investigations are called for.

Lorraine Schembri Orland