Readers of this newspaper may be aware of the grave and serious issues I raised concerning the appointment of Dr Anna Felice to the Bench (TMIS, 12 November). To date, the Executive has remained silent and has deemed fit to ignore its duty to the public of transparency and accountability. One could say that silence is consent. Perhaps – but the public deserves more. This appointment has, in fact, highlighted the flaws in the current accepted practice for judicial appointments and should provide the impetus for a review of this system in line with modern democratic principles.

It was such principles that led to recent reforms in the United Kingdom (The Constitutional Reform Act 2005) .The Lord Chancellor, who was at the time the politician responsible for the appointment of Judges in England and Wales, stated in 2003: “In a modern democratic society, it is no longer acceptable for judicial appointments to be left entirely in the hands of a Government Minister.”

Fast forward to Malta, 14 September. Barely two weeks after the latest appointments to the Bench, the Chief Justice, Dr Vincent Degaetano, in an interview reported in The Times of that date, voiced serious concerns on the manner of judicial appointments and called for the setting up of a Judicial Appointments Board that would “vet potential nominees and perhaps draw up a short list in order of preference”.

The Parliamentary Secretary in the Justice Ministry, Dr Carmelo Mifsud Bonnici, responded to this suggestion, delivered by no less a person that the President of the Law Courts, in his usual inimitable, glib style. In a report carried in that same newspaper of the 25 October, Dr Mifsud Bonnici said: “…There is no reason to change the way in which members of the judiciary are appointed… the present system worked.”

This “I can do no wrong therefore no wrong can be done” type of logic is mind-boggling. In one sweeping statement, Dr Mifsud Bonnici sought to quash the concerns raised by his Honour the Chief Justice who asked: “Who takes responsibility for the mistakes?… if the wrong decision is taken it is very very difficult to remove that person. And one bad apple tarnishes the whole judiciary.”

I may ask: does Dr Mifsud Bonnici assume full responsibility and accountability for such mistakes?

Dr Mifsud Bonnici, in fact, “challenged anyone to say that in the appointment of any of the judges and magistrates the executive, whichever one, acted in a manner that was irresponsible or which did not take into consideration the need to have these basic essentials”. (In this he referred to three criteria – character, knowledge of the law and one who did not have a bad reputation with clients(?!).

Well. If Dr Mifsud Bonnici has been following the papers, I have been challenging him all along for having flouted his basic duty towards the Constitution. But more of this later.

Back to the issue of democracy and the stuff our politicians are made of. The Executive in the UK was true to its word and the authority for judicial appointments is now vested in a Judicial Appointments Commission. The Act also makes provision for a Judicial Appointments and Conduct Ombudsman and for judicial discipline.

We in Malta, tend to know better. The desire to hang on to Ministerial power is not, of course, characteristic of our country alone. Ministerial discretion in the choice of members of the Judiciary is, save for article 96(2) of the Constitution, unfettered. Of course the Minister wants to retain his power of appointing at his pleasure.

Yet I do find this superficial dismissal of the Chief Justice’s considered suggestions by a parliamentary secretary – a postscript, if you please – rather disturbing. Nor is it in agreement with a large part of the democratic world. France, Germany, Italy, the Netherlands, Portugal, Spain, Ireland, Scotland, Northern Ireland, Canada and many States in the United States have removed this power from the Executive.

How can the balance of power be preserved if the Executive abrogates absolute power in such appointments? One of the principle arguments raised against systems such as ours is that justice can only be manifest where “the appointment of the judge is made in a way which is transparently free of political patronage,” according to G.L. Davies, Faculty of Law – QUT – 4 September. He goes on to say: “ There is another important way in which the appointment of judges solely by a politician may erode the standard and standing of the judiciary, and consequently public confidence in the administration of justice. Because such appointment may have been for some reason other than because the appointee was the best person for the position, there is a very real risk that he or she will be below the professional standard required to discharge the performance of the judicial function justly and according to law. “

Article 96(2) as a limitation on the Powers of the Executive

Although the Maltese Constitution provides that a member of the Judiciary is to be appointed “By the President acting in accordance with the advice of the Prime Minister”(article 96(1), in practice, potential nominees are selected by the Minister of Justice or, in our case, even by Dr Carmelo Mifsud Bonnici. The Minister’s discretion is absolute save for the limitation that he “must select a person who has practiced as an advocate for an aggregate of not less than 12 years in Malta” (article 96(2).

According to Collins English Dictionary, “practice”, in its ordinary meaning, signifies “repetition or exercise of an activity in order to achieve mastery and fluency”, “the condition of having mastery of a skill or activity through repetition”, “the exercise of a profession”, “to work at”. The time requirement of 12 years signifies the intention of the legislator to ensure that the person appointed has practiced the profession for such a period, consecutively or in total, in order to acquire the knowledge and experience of the profession necessary for eligibility to the preliminary “list” of nominees. Any person not so practiced cannot even qualify for this first list, let alone for an eventual short list and nomination.

Whether the Minister likes it or not, he is bound by this limitation. Experience is the qualification that the drafters of our Constitution saw fit to impose. “Character, knowledge of the law and one who did not have a bad reputation with clients” mentioned by Dr Mifsud Bonnici as his criteria, are not to be discarded and, indeed are important as qualifying criteria (though I have not come across his third requirement in the list of criteria adopted in various countries for selection – I assume he means a generally good reputation).

Yet be that as it may, the Constitution has laid down one sine qua non qualification – a basic eligibility criterion that must (not may) be respected.

The practice of the law is also a common basic requirement in various jurisdictions. As the Chief Justice of Australia said, speaking on the subject of Judicial Selection and Training: Two sides of the one coin at the Judicial Conference of Australia, Darwin, May 2003, “relevant experience means two things. In the first place it means experience in the kind of things that judges do in the court to which the appointment is made. And secondly, it means experience of that kind over a sufficient period to ensure that those things will be done well and efficiently.”

Experienced lawyers do this kind of work – they decide on-the-spot questions of procedure, evidence and case management. They formulate submissions, weigh available evidence and determine the logical manner in which to present their case while anticipating the judge’s response and decision. Often these decisions involve examining a spectrum of legal remedies and choosing the optimal one, with due consideration to practical issues such as the expense involved and the time factor. They hear clients in chambers, deal on a constant basis with legal problems, and acquire the experience needed to deal with the human aspects of these problems.

The Commissioner for the Administration of Justice

In a sense, we in Malta already have a blueprint for a Judicial Appointments Commission in the Commission for the Administration of Justice established by the Constitution. However, this Commission can only advise on judicial appointments “when so requested by the Prime Minister” (article 101A(11)(c). Unless and until such advice is requested, the Commission is dormant.

The Commission was, however, activated when Dr Andre Camilleri was put up for nomination in 2002. The Commission expressed its concern that the qualification of 12 years practice as an advocate was not satisfied. I do not wish to even hint at any disrespect for Dr Camilleri, whose integrity and values I admire. However, I must refer to this case as an important precedent. Would a responsible Minister have gone ahead with his nomination regardless in the case of a nominee who did not manifestly satisfy the Constitution or would he have been prudent and subordinated his desire to nominate the person of his choice to the scrutiny of an independent body to ensure conformity with the Law? Would a responsible Minister have played a game of chance with the Constitution?

It may be useful to recall that the Commission was at the time chaired by Professor Guido Demarco, a former Minister of Justice, and composed of the Chief Justice, The Attorney General and representatives of members of the Judiciary, the Magistrates of the Inferior Courts, the President of the Chamber of Advocates and two other appointees nominated by the Prime Minister and the Leader of the Opposition respectively. The Commission did not register its reservations lightly or with little knowledge of the law.

The right of the public to demand transparency in judicial appointments and the right to public opinion

The Courts are not immune from public opinion. Newspapers across the democratic world are rife with comments and criticism, often extremely vociferous at that, regarding judgments or judicial comments given during proceedings. This does not mean there is less respect for the dignity of the Law Courts. From another viewpoint, the Judiciary cannot defend itself if the Constitution is breached by a new appointment. As the Chief Justice himself was reported to have said: “One bad apple tarnishes the whole judiciary”. Is the Executive therefore to be shielded from public accountability? Is this matter to be left to the Constitutional Court or can we also call for the Executive to be accountable in the interests of transparency?

Surely the effects of an unconstitutional appointment are too far-reaching for the matter to be left unaddressed. In his book entitled The Maltese Constitution and Constitutional History since 1813, Prof J.J. Cremona has this to say on the effects of an unconstitutional law: “Although the Constitution does not say this in terms, a law which is void by reason of inconsistency with its provisions is not void only as from the date of the judicial pronouncement to that effect… the invalidity retroacts ex tunc. Time does not run in favour of legislation.”

We have no precedent for a finding of Constitutional ineligibility in the process of the appointment of a member of the judiciary. The nomination of Dr Anna Felice has created this precedent. This is not to say that Dr Felice is not deserving of great respect for her integrity. However, the issues at hand prescind this consideration as, despite the Parliamentary Secretary’s haste to denigrate his professional colleagues, the majority of advocates from whom judicial nominations are made are also deserving of respect for their integrity, dedication and professional ethics.

I firmly believe that the facts in this case require a serious investigation. We have long turned a blind eye to political patronage and nepotism in this country and see it as an essential part of our societal fabric. Also, Ministers must acknowledge that they are not omniscient and cannot override criteria of fairness and justice. Human error, however borders on recklessness when such Ministers act with due disregard for the basic law. These considerations should warrant an immediate investigation into the matter.