The appointment of former Magistrates Doreen Clarke and Josette Demicoli as judges has, for the very first time in the history of independent Malta, prized merit over political patronage in judicial appointment. Of course, it has been quite a long-winded and tortuous route to arrive here – 58 years following independence – and it was not surely thanks to the foresight of our political class who wanted to retain the power to dictate who should be appointed judge and magistrate.

Were it not for the political pressure on the Maltese government by the Council of Europe’s Parliamentary Assembly, the Council of Europe’s Venice Commission on Democracy through Law, the European Union Parliament, the European Union Commission, and other international actors, partisan politically-divided Malta would have never ever arrived on its own steam – albeit extremely belatedly – at this stage where judicial appointments have now begun to be made on the basis of merit and no longer on the marring criterion of political patronage.

Nevertheless, there are still vestiges of this anachronistic system of political patronage in the judicial branch in force in relation to the appointment of Chief Justice who is appointed by a political organ of the state. It is sincerely hoped that this last relic of government authoritarianism is relegated, some time in the near future, to the annals of history. Hopefully those same international and regional institutions that have been putting constant pressure on the Maltese government to do the right thing continue to do so in order to have the appointment of Chief Justice removed from the political arena.

Yet the system of judicial appointment continues to lag behind.

First, there should be a system in place to assess, on an annual basis, performance by all members of the judiciary. In this way, magistrates can be given all the necessary assistance to move on to the next step – judgeship. Through the creation of a career path that has always been resisted in the past by successive governments so as to appoint to the judiciary their sympathisers, the appointment of a more trained, meritorious, and professional judge is ascertained. It will also ensure that undeserving magistrates are not appointed to judicial office.

Second, the Judicial Appointments Committee should always prioritise merit over other appointment criteria. To do so implies that deserving magistrates should be given a preference over all other practising and non-practising members of the legal profession who do not come from the category of sitting Magistrates. Merit is after all the heart of a just decision even though it has not been, and continues not to be, practised by successive governments in various non-judicial appointments.

Third, in order to ensure a smoother path to the appointment of magistrates who are both trained and professional, the judicial class should be extended to comprise not only judges and magistrates but even Judicial Assistants. The latter should be full-time employees of the judicial branch appointed by the Judicial Appointments Committee and there should be absolutely no government involvement in their appointment. They should enjoy the same security of tenure as judges and magistrates do. In this way, a career path is opened for a deserving Judicial Assistant to be appointed Magistrate and subsequently Judge, including Chief Justice.

Fourth, it is imperative that Judicial Assistants are given the same training as Judges and Magistrates and that they participate in all training sessions organized by the Judicial Studies Committee, and are trained in judgecraft. As it is impossible in Malta, due to its tiny size, to hold academic courses that lead directly to judicial office, the office of Judicial Assistant can serve this purpose.

Moreover, training courses on judgecraft should be organised for those members of the legal profession who aspire for judicial office and who are not already sitting members of the judiciary or Judicial Assistants. Participation in such training courses and successful conclusion thereof should be a pre-requisite for non-members of the judiciary and Judicial Assistants to apply for judicial office.

Unfortunately, the current system of court attorneys defeats the whole process of judicial appointments based on merit. This apart from the fact that the law does not even recognize this office for the Code of Organization and Civil Procedure refers to the office of a Judicial Assistant and not to that of a court attorney. Indeed, it is totally in breach of the rule of law to have a new office created by government on an administrative basis that runs in parallel to, and serves to indirectly abolish without any parliamentary intervention, one that is created by law. This, indeed, amounts to an abuse of power.

Hence, government needs to ensure that the system of court attorneys is ditched once and for all, that Judicial Assistants are appointed on a full-time basis by the Judicial Appointments Committee, and that the current violation of the rule of law in relation to court attorneys whose office is extra-legal is ironed out so that Malta complies concretely and effectively with the rule of law. Unfortunately, for successive Maltese governments – both Nationalist and Labourite – the rule of law translates itself into nothing but lip service. This example is a case in point.

Fifth, all calls for appointment of judges, magistrates and judicial assistants should be issued by the Judicial Appointments Committee, not by the ministry responsible for justice.

Finally, all future judiciary should be in possession of a PhD to raise their academic standards so that in this way the judiciary is appointed from amongst practicing advocates who are also fully fledged jurists. Whilst the University of Malta’s Master of Advocacy law course prepares students for the legal profession, it does not prepare them for judicial office. Nor does it turn them into fully-fledged jurists well conversant with advanced legal theory as it, together with the Bachelor of Laws (Honours) degree, only equips them with a basic introductory knowledge of the Maltese legal system.

Kevin Aquilina is Professor of Law, at the Faculty of Laws, University of Malta.