Lately, as has been publicised, the Parliamentary Committee for the Recodification and Consolidation of Laws, of which I am a member, has been discussing the formulation of an administrative code. The idea behind this endeavour is to create a compendium of laws covering the various aspects of good governance. Undoubtedly this has been an ambitious project undertaken by the said committee, a venture which has been going on for the last three years. I am happy to comment that we are now in the final stages of launching this proposed code of laws. One particular aspect being tackled in this regard, and which has caught the eye of the media, is a novel approach with regards to the appointment of members to the judiciary.
...it is of paramount importance to elevate those among the best members of our legal profession to the bench- Josè Herrera
According to our Constitution, in article 96, we see that in Malta, judges are appointed by the President upon the recommendation of the Prime Minister. Here we see that such delicate appointments are left at the absolute discretion of the Executive, generating lack of transparency. For some time now, the debate has been going on both in legal and political circles as to whether it is time to reconsider this position. Undoubtedly, judicial work has over the years become far more cumbersome, not merely with regard to the volume of work involved but more so regarding the complexity of the legal issues to be determined.
You certainly cannot have good governance without the back up of a strong and efficient judiciary, since it is this organ of state which in the final analysis has to interpret and implement the laws emanating from the legislature, which laws, even due to our European Union membership, tend to be far more intricate. In this regard therefore, it is of paramount importance to elevate those from among the best members of our legal profession to the bench.
It transpires that Malta is the only country left within the European Union whereby the selection of our judges has been freely left to the preference of our Minister of Justice. In the other states, the selection of judges is either totally extrapolated from the whims of the Executive or else obliges the administration to consult ad hoc authorities.
In discussing this issue the committee members are in agreement, in this regard, that we should adopt a middle ground. This position has been taken not merely so as not to disturb the relative provision of our Constitution but also since it was felt that in our political system it should remain the prerogative of the State to make such appointments in order to perpetuate our system of checks and balances between the three organs of State. Here we see that the judges are appointed by the Executive but can only be removed by the legislature and at the same instance it remains up to the same judiciary to circumvent both the government and Parliament from carrying out excesses and abuses.
This notwithstanding, it was decided to eventually recommend to Parliament a system which would somewhat buffer this absolute discretion. Here we have opted to follow a system akin to the Scottish module. It is being suggested that there should be established by law a judicial committee composed of members of the stakeholders whose function would be to comment upon and duly give advice on the government’s judicial nominations; though here the prerogative will remain that of the minister it will surely make him far more accountable. The reason being that if he would arbitrarily ignore the recommendations being made, he would have much more to answer for regarding the performance of that particular member of the judiciary.
Though as a rule our governments have been very cautious in selecting members to the bench, the present lack of transparency has at times led to criticism, whereby occasionally, it would seem that such choices would not have been based on merit but on alternative considerations.
A few days ago, one of our more prominent and senior judges, Judge Alberto Magri, retired. While I take the opportunity to wish him well and express my appreciation for his sterling service over the years, I must comment further. His departure from the bench has now left a vacancy. It would be more than welcome especially today when the public’s trust in our foremost institutions is faltering, that our government will endeavour to appoint the most apt person for the post and where the only considerations to be taken would be those regarding meritocracy.