From Prof. J.A. Muscat

A recent judicial appointment to the Superior Courts has caused Dr Lorraine Schembri Orland to raise the issue of the appointment of judges as regulated by law, in a series of letters to the press.

Her last communication (TMIS, 17 December) dealt at length with a number of points that have a bearing on the matter and that deserve repetition, in view of the fact that so little public interest seems to have been aroused.

The first is the great importance, and hence the heavy responsibility, that such an appointment carries. On it may depend “the standard and standing of the judiciary and consequently public confidence in the administration of justice”. This is unquestionable, as the Maltese public can testify in the light of recent experiences.

The next question is: how much discretion or political patronage should a minister be allowed in such appointments? The prevailing view in the major countries in the EU, as in other large modern parliamentary democracies, is “as little as possible”.

This, sadly, is not the case in Malta, where a minister has traditionally been virtually allowed a freehand.

Political patronage, like the poor, will always be with us. It has been practiced widely and unashamedly in our small island state by every major political party that has had a hand in government, over many years, and the baneful results of ill-chosen appointments are there for all to see and experience. It forms an important element in what has been termed the democratic deficit in our public life. However, all is not gloom.

Inroads are being made into the way appointments are made to important organs of state, as witness the recent legislation regulating the constitution of the medical council. Indeed it behoves a modern parliamentary democracy to be continually engaged in improving the machinery of public office, making it more representative, more transparent and democratic.

Tampering with the law, however, is not a desirable thing, particularly if the law is the Constitution. A remedy is perhaps available in the stated functions of the established Commission for the Administration of Justice where judicial appointments are concerned.

Here it should be made mandatory that the Prime Minister request the advice of the commission before the President makes a judicial appointment.

Other devices, no doubt, can be thought of and considered, to restrict ministerial discretion to a minimum, such as subjecting a choice to the scrutiny of Parliament and requiring it to give a clear majority vote for assent.

Whatever the outcome, the matter is of huge public importance and calls for a review of present usage.

Prof. J.A. Muscat

TA’ XBIEX