Under Malta’s Constitution, our independent judiciary is the vital cog that ensures all citizens are treated equally and impartially under the law. The rule of law, grounded in the independence of the judiciary, is the ultimate protector of our liberty.

It was therefore disturbing to read in another newspaper an interview with a judge, speaking under conditions of anonymity, who said that the drive by a non-governmental organisation to suspend a raft of judicial appointments made at the beginning of this year has demoralised the judiciary. 

Repubblika, the NGO behind this court case, was set up 10 months ago to promote civil rights, democracy and the rule of law. It proclaimed that it was non-partisan and not affiliated with any political party. 

When it was formed, my hope was that it would provide a healthy substitute for The Today Public Policy Institute think-tank, which over a period of 10 years had established a considerable reputation for its objective, non-party political reports on a range of Maltese policy issues. Sadly, the TPPI board had abjectly thrown in the towel soon after the 2017 general election. 

Today, Repubblika, which is led mainly by former PN party candidates, officials or other Nationalist stalwarts, seems through its words and actions to be mutating into a faction of that elitist wing of PN that refuses to support Adrian Delia’s leadership. 

It claims to be seeking “truth and justice”. But it may simply be a cult, with some 3,000 fervent but estranged supporters of Simon Busuttil, bent on undermining Delia’s position and focussed solely on attacking the government at every turn. Non-partisan it is not. 

Repubblika is demanding the government should nullify the six judicial appointments made last April until it implements the recommendations of the Council of Europe’s Venice Commission. The government has promised to introduce the revised system at a time of the executive’s choosing, as it is constitutionally entitled to do. 

The judge said that the legal pressure by Repubblika has led to a “siege mentality” among judges and magistrates which has undermined their morale. As an experienced and long-serving member of the judiciary, who had been elevated to the Bench several years ago, he deplored what has happened: “The situation is uncalled for. These are issues over principles, not ad hominem. I am disappointed at the way Repubblika’s case has been handled and how it came about. It should not have been done. It is a political battle that should be fought in the court of public opinion, not here” [in the Courts of Justice].

“If the current system is no good – and this after being approved by the European Commission – how much worse was the previous one? You can’t just say that after a change is made, everything that happened before it is automatically wrong… Let us work. I love this job, but this issue is really demoralising.”   

Repubblika’s case before the courts is perfectly legitimate but wrongheaded

There are four points to ponder from this heartfelt plea. First, in line with Venice Commission recommendations, the government has promised to introduce an enlarged Judicial Appointments Committee which vets, ranks and proposes applicants to the judiciary, including for the post of Chief Justice, for direct consideration by the President (not, as now, by the Prime Minister).

Repubblika’s case now rests with the civil courts. But, as a layman, it seems to me that as a matter of equity and good governance judicial appointments that pre-date the new regime – whenever that is introduced – should stand. To revoke all judicial appointments made prior to this because they were appointed by the Prime Minister – whether Lawrence Gonzi or Joseph Muscat – would be not only illogical and unfair but also extremely disruptive. As this judge put it: “You can’t just say that after a change is made, everything that happened before is automatically wrong”.

Second, although for the last century of Maltese self-government and independence members of the judiciary have owed their appointments to the prime minister of the day, the overall record of Maltese judicial independence has been good and, almost invariably, above reproach. Judges have properly exercised the constitutional power which the rule of law requires that they should exercise – independent of the government. 

This has not always endeared them to those whose decisions are successfully challenged. Least of all has it endeared them when it was a high-profile decision of importance to the government of the day, whatever its political colour. 

Third, the rule of political neutrality in the judiciary in western democracies has not been universally observed. Notably, this is true in the United States, where federal judges and justices are appointed on the nomination of the President with the Senate’s agreement. 

Moreover, the judiciary in many EU countries – such as Germany, France, Denmark, the Netherlands and others – also has a long history of selection by politicians.

Fourth, closely allied to the requirements of judicial independence, is the requirement that members of the Maltese judiciary are impartial in their decisions. The judge or magistrate, to the greatest extent possible, approaches the issues with an open mind, ready to respond to the legal and factual merits of the case. A judge’s ruling is an expression of the law – not of his personal opinions. 

Since judges are human beings, not robots, they are inevitably, to some extent, the product of their own experience and background. The mind which they bring to a decision on issues cannot be a blank canvas. But they seek, though their training and legal discipline, to neutralise any extraneous considerations which might bias their judgment. And if they are conscious of matters which might give rise to an appearance of bias, they learn to decline to make the decision in question. Judges possess authority because they stand at a distance from the fray.

It is cynical – and disrespectful of Malta’s long and honourable judicial history – for Repubblika to infer that those judges and magistrates this government has appointed are tainted because a Labour administration has selected them. Any more than those judges promoted over the last century by Nationalist prime ministers have been other than impartial in their conduct.    

Repubblika’s case before the courts is perfectly legitimate but wrongheaded. On the other hand, the timing of the government’s list of new appointments to the Bench while constitutionally legitimate, has been politically clumsy. It is disingenuous of Repubblika to conflate the two. The effect on judicial morale of its politically-driven action is unconscionable.   

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