The Malta Independent 16 October 2019, Wednesday

A new frontier

Noel Grima Sunday, 6 October 2019, 08:34 Last update: about 10 days ago

Continuing on what I wrote two weeks ago regarding different strands of Opposition in Malta, there has been a significant development about which most of the country seems to be in total ignorance. Once again, as already happened in the 1980s, the battlefield is the Courts of Justice – a  rather obscure place which, for many people, reminds them solely of the Criminal Courts or at most the Civil Court.

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But there is far more to the Courts than just these two. The Constitutional Court is a case in point: it is there to defend our constitutional rights. The problem is that there is a generalised fear and distrust of the Courts – maybe due in part to some negative judgements as seen by those who do not think they were served well, but also in general by those who have long been observing the workings of the court and have repeatedly seen its flaws.

On the one hand, and this is admitted by many, our legal systems are the result of multiple parents: the Roman Code, the Code de Rohan, the Napoleonic Code and the British one. There have been many efforts at bringing some sort of order but the amalgamation, so the experts say, is still not complete.

Then there is the Maltese input and this – mainly for political reasons – has made matters worse. The best writer on this is Judge Giovanni Bonello, who has written reams about how we have a Constitutional Court which can decide that your rights have been infringed and that a particular law is unconstitutional but then cannot order that law to be declared null and void, nor can it order Parliament to change it.

The Maltese Law Courts have many times been the subject of huge controversy, most notably during the Labour administration in the 1980s, when the Constitutional Court was simply not appointed for quite a long time. It was the PN government which – as soon as it was elected in 1987 – gave right of redress through the European Court of Justice.

When Malta later joined the EU, the rule of law was further bolstered by the adoption of the Acquis Communaitaire and the European Court of Justice. Yet complaints about the Maltese legal system have continued and the current national (and international) concern about the absence of the rule of law in today’s Malta shows that things are not as smooth as the government spin makes them out to be.

This is where the new NGO Repubblika comes in, just as in the 1980s Page Thirteen became a national spur to action.

In one significant recent case, Repubblika focused on the government’s recent mass appointment of judges and magistrates. Earlier this year, the group had filed a court case against the Prime Minister and the Justice Minister, seeking to nullify judicial appointments made before the government implemented the recommendations by the Venice Commission on the rule of law and the independence of the judiciary.

The appointment of six new members of the judiciary is being attacked by the NGO, which said that no new judges or magistrates should have been appointed until a revised system of appointments had been implemented.

Last week, judgment was handed down on those preliminary appeals by Chief Justice Joseph Azzopardi, together with Mr Justices Giannino Caruana Demajo and Noel Cuschieri.

“The law is not static and, even without a change in statutory law, what was good and valid in the past did not necessarily remain so today. In other words, the fact that judges and magistrates were always appointed in such manner in the past…did not mean that such method of appointment was satisfactory today,” said the court.

Although it turned down the request for an interim measure, explaining that the law provided for such measures by way of precautionary warrants, it did not say that the concerns highlighted by Repubblika had no basis. The court said it looked into the merits of the case “since other members of the judiciary could still be appointed pending the final outcome of the case.”

In other words, the Court said that although Maltese judges and magistrates had long been appointed at the discretion of the Prime Minister, this did not mean that the situation was to remain as it is.

Reacting on Facebook to the court’s decision, PN MP Jason Azzopardi said that Repubblika were being proved right and that the future would bring with it “judicial Armageddon”.

But I refer to a very interesting article by Victor Paul Borg which appeared in The Times on Wednesday : “Last Friday’s judgment of the Constitutional Court, in the constitutional challenge by the NGO Repubblika to the system of judicial appointments, has opened the way for the case to be referred to the European Court of Justice (EJC).

“It has also historically set the stage for anyone to challenge, through provisions in the Maltese Constitution, any law that might be incompatible with EU law. 

“The decision has dramatic implications for the system of judicial appointments as well as the six appointees of last April 25 which triggered the lawsuit in the first place.

“Those appointments have been thrown into greater uncertainty than ever before.

It has become clear that the government wrong-footed itself when it ploughed ahead with April’s appointments despite the Venice Commission’s portrayal of the judicial appointments system as falling short of ensuring the independence of the judiciary.

“Sources have told the Times of Malta that there is palpable concern among justice officials that we may be heading towards the “constitutional mess” forecast by eminent legal scholar and former Dean of the Faculty of Laws, Kevin Aquilina.”

In the end, it could be that the outcome of this court case will have long-lasting repercussions as has the UK’s Supreme Court on the prorogation of Parliament in the UK.

 

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