The courts have upheld a request for a reference to the European Court of Justice by civil society activists Repubblika on the issue of the current system of judicial appointments.

The government has given notice of appeal.

In a note filed before Mr Justice Mark Chetcuti two weeks ago, Repubblika said it wanted the European Court to determine whether the current system of judicial appointments in terms of the Maltese Constitution was in breach of the European Treaty and/or Charter of Fundamental Rights.

It explained that the current system gave the Prime Minister “arbitrary discretion,” was not subject to “clear and objective rules or criteria” and was lacking any need for explanation or motivation nor subject to any judicial authority. 

The Prime Minister had opposed the request at the current stage of proceedings, arguing that first the court had to hear evidence to decide whether or not the reference was necessary.

The court, however noted that the question required the court to pronounce itself on delicate aspects of the case which had the possibility of legal implications, especially in view of the recent European Court decision against Poland. The judge also held that for the purposes of this reference, which is of a legalistic nature, no evidence needed to be heard.

Citing previous case law, Mr Justice Mark Chetcuti observed that there were three instances where a national court is not bound to make the reference. These were when the question has already been answered by the ECJ, when the answer can easily be deduced from previous sentences and where the implementation of Community law was so obvious that it left no doubt as to the answer of the referred question.

The central question to this case had not been the same as others, notably the decision against Poland, which dealt with the validity of a law which was recently enacted, noted the court.
“In today’s case, particular articles of the highest law of the land, that is the Constitution, which have been in force since independence…are being attacked before the Maltese courts, and are now being besieged for reasons forming the merits of the action,” said the judge.

“At this stage this court does not see it as wise and just for the parties to comment upon them. This is being said because the answers and legal and juridical consequences which possible may emerge from an action of this nature do not appear to have been addressed by the jurisprudence of the European Court.” Neither could the question of the working of EU law invoked in the case be decided by a simple reading of the law, without the assistance of the European Court, said the judge.

“The subject matter is a delicate one, of national interest and with very serious repercussions, not only on the justice system, but for all of society which in some way or other touched or will touch the Maltese courts…”

In a separate decree also handed down today, the court also rejected lawyer Joe Brincat’s request to intervene in the case.