There are rules in the Rules and Guidelines established by the Judicial Appointments Committee which run counter to the provisions of the Constitution of Malta.  The Committee is entrusted with recommending to the President of Malta the most suitable candidates for the job of a judge or a magistrate.

It is true that Article 96A(8) of the Constitution of Malta empowers the Committee to regulate its own procedure but this power has to be within the parameters of the provisions of the Constitution. 

First case in point:  Abstention of a member of the Committee

The Constitution of Malta by means of Article 96A(3)( d)of the Constitution states what happens when the Chief Justice, the Auditor General , the Commissioner for  Administrative Investigations or the President of the Chamber of Advocates abstain or are challenged, but  it fails  to mention what happens when a magistrate who is appointed by his colleagues to sit in the Committee applies for the post of a judge.

But when this situation occurred last year, the Committee decided to conduct the interview based on quorum instead of ensuring that another member representing the magistrates is appointed.  The Committee argued that article 96A(3) of the Constitution does not state what happens where a member who is a judge or a magistrate abstains, and so, it can go ahead without that member.   

I do not agree with this interpretation as it goes against the spirit of the Constitution and the situation calls for an amendment in the Constitution of Malta so that it will provide for the case when a member of the Committee who is a judge or a magistrate abstains or is challenged.

Second case in point: Conflict of interest of a member of the Committee

Article 96A(3) (c) of the Constitution mentions that a member of the Committee may abstain or be challenged in the same circumstances as a judge of the Superior Courts.

The Committee, in this case, went one step further and by means of Rule 19( 7) of its Rules and Guidelines, it provides that notwithstanding such abstention or challenge, such member can still submit his views on the candidate but may not vote.  The Rule states explicitly  “….In the event that a conflict exists, real or apparent, the member may provide comments on the candidate if the member so chooses but the member must withdraw from discussions by leaving the room and abstain from voting on the assessment of any candidate. “

The question is how can a member be impartial and independent in his views on a particular candidate if that member has a conflict of interest?

Third case in point:  Criteria for eligibility

Another point is regarding the criteria eligibility.  Article 96B (2) of the Constitution of Malta establishes ten criteria for the eligibility of the applicants.

The Committee decided to add another criteria, which is that no applicant shall be recommended for judicial office by the Committee unless at least 12 months would have lapsed from the date when all political and other affiliations have been severed and the date of the report to the President making a recommendation.

Can the Committee add more requirements to those requested by our Constitution?

(i)               Report to the President of Malta

The rule about the report which the Judicial Appointments Committee sends to the President of Malta is established by Article 96A (6)(d) of the Constitution of Malta.

It states that the Committee is to send to the President of Malta the name of the three candidates who it deems to be most   suitable for the job and the President can only elect a judge or a magistrate exclusively from the names of the three candidates transmitted by the Committee which names of the three candidates shall be made public in the President’s decision.

In fact article 96(1) of the Constitution makes it clear that the judges of the superior courts shall be appointed by the President acting in accordance with the recommendations made by the Judicial Appointments Committee established by article 96A of the Constitution.

The Committee opted for another method.  The Committee submitted to the President four names it considered most suitable to be appointed for the vacancy of four  judges (and not the three candidates for each vacancy) and submitted a waiting list and the life span of such waiting list when the Constitution does not say so.

The life span for this waiting is that of two years and the question is obvious:  now that there is another call for applications, and the two year period has not elapsed, is there going to be a selection criteria for the new applicants and a different selection criteria for those in the waiting list?

Secrecy

Article 96A (8) of the Constitution states that the proceedings of the Committee are confidential and  held in camera and does not state that the applicant has no right to see his assessment report as the Committee in Rule 16(3) ) has   established.

In this age of transparency and rule of law, why is a candidate deprived of his assessment report?

Conclusion: as many of my colleagues put it, whereas before the appointment of judges and magistrates was made by the Prime Minister,  nowadays the appointment is made by the Chief Justice with the complicity of the few!

Anna Mallia is an advocate