The Malta Independent 17 October 2019, Thursday

Editorial - Injudicious appointments: high time for a change

Sunday, 14 February 2016, 09:30 Last update: about 5 years ago

It is one thing for the government to ridicule and brush off the Opposition when it calls for reforms in the way members of the judiciary are appointed.

After all, this unchecked situation in which members of the judiciary are appointed to the bench by the executive branch of government had remained unaltered and in place over the Nationalist Party’s previous 25-year tenure.

But it is another matter altogether when the Chamber of Advocates, representing, by and large, the whole of the country’s legal community of practising lawyers, is crying more than foul over the current situation, and is more than echoing the Opposition’s calls for change.

This situation has been festering for a long time now and matters recently came to a head with the government’s most recent two controversial nominations to the bench, the details of which are well documented and as such do not bear repeating at the moment.  Last week’s dubious nominations followed a similar row that erupted when the government appointed two Labour-leaning magistrates last May.

The crux of the matter is that the government simply cannot continue to put off the repeated calls to undertake a drastic reform in the way members of the judiciary are appointed in Malta. This is even more so when it was one of the main recommendations from the commission, headed by former European Court of Human Rights Judge Giovanni Bonello, which the government itself had appointed to draw up proposals for the reform of the justice system.

To put things into better perspective, as matters stand Malta is one of the only – if not the only – countries in the democratic world where members of the judiciary are appointed directly by the executive branch of government, i.e. Cabinet, at its sole discretion and behind closed doors.

It goes without saying that this is a democratically-unsound and a far from transparent process – so much so that the Council of Europe has blasted Malta for its complete lack of a formal appointment process, with no invitation to apply for vacancies on the bench and no interviews being held. 

In fact, it warned just last year that the situation creates the widespread perception that judges are not appointed because of their “suitability” but for “reasons of influence”.

The government has been promising since at least last year that it will make changes to the judicial appointment system, but so far has not detailed exactly what changes it has in mind or when they will be implemented. And even in this latest ruckus, it is keeping its cards close to its chest. The justice minister did, however, say this week that the necessary reforms are currently underway and that certain “pressing issues” are to be addressed in the “coming weeks”.  

He was speaking after the Opposition presented its own proposals for reforming the selection process, which include the establishment of an authority to be made responsible for the selection of judges and magistrates.

In its own report, the Bonello Commission had proposed the establishment of a Judicial Appointments Commission, which would recommend to the government the names of people it deems fit to be appointed judges and magistrates. That Commission should be appointed by the President and have six members. The Bonello Commission had also recommended that there be a public call for applications each time a judicial vacancy occurs.

Let us be clear that this is not an issue of the current government’s making, and this less than desirable state of affairs predates not only the current but several legislatures. This situation is more than convenient for any government of the day and, it could be reasonably argued, that is perhaps precisely why successive government after government has been so reticent to address the issue.

‘It goes without saying that this cosy arrangement, as spelled out by the Council of Europe, leaves ample room for political leverage – before, during and after the appointment of a magistrate or judge – with dire consequences in terms of the separation of powers required for good governance.’ This requires, as a basic tenet, the vesting of the legislative, executive, and judicial powers of government in completely separate, independent bodies.

The fact of the matter is that even if that leverage is never applied, the possibility is still there. And the mere suggestion of the existence of such leveraging power is enough to erode one’s faith in the judiciary, most particularly when it comes to cases of a political tinge.

It is high time that the government takes the bull by the horns and brings the country one more step toward being a fully-fledged democracy by clearly and distinctly separating the executive and the judicial branches of government.

The ball, as the adage goes, is in the government’s court.

  • don't miss