Final judgment in a constitutional court case filed by civil society Repubblika, challenging the current system of judicial appointments is expected next month.
The NGO instituted the case against the prime minister and the justice minister, seeking to nullify judicial appointments until the government implements recommendations by the Venice Commission on the rule of law and the independence of the judiciary. It is seeking to nullify the appointment of six new members of the judiciary, saying no members should have been added to the bench until a revised system of appointments was in place.
“I’m confident I would win this case in (the European Court) in Luxembourg,” Simon Busuttil, assisting Repubblika together with Dr Jason Azzopardi, said when making final oral submissions before the Constitutional Court.
“We filed an action before the latest appointments but the government, in defiance of all, went ahead with the swearing-in ceremony,” said Dr Busuttil referring to the swearing-in of three judges and three magistrates on April 25, despite an urgent application by Repubblika to block the appointments.
A month later, the First Hall, Civil Court, presided over by Mr Justice Mark Chetcuti, declared that Repubblika did not have juridical interest in the issue under Maltese law, but postponed a decision about a reference to the European Court, saying it would rule on that matter at a later stage.
A week later, that same court upheld both parties’ request to appeal, declaring that such a “sensitive” issue merited direction from the Constitutional Court and emphasizing the need for such appeals to be handled “with urgency.”
Drawing parallels with the landmark judgment delivered in June by the European Court of Justice in the European Commission vs Poland, Dr Busuttil argued that while that case concerned the Polish President’s powers to extend judges’ term in office, the Maltese Prime Minister “did more than that.”
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The ECJ had concluded that by lowering the retirement age for judges appointed to the Supreme Court and by granting the Polish President the discretion to extend the active judicial service of Supreme Court judges, Poland had infringed EU law.
That measure had removed some 27 judges at one fell swoop, prompting a lawsuit by the judges concerned who sought an interim measure blocking the Polish law.
"Once the applicants in Poland attained their objective “why not in Malta too?” Dr Busuttil asked.
“One might argue: but this is Poland not Repubblika (Malta). But the subject matter is the same. We cannot ignore EU laws.”
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The greatest proof of the validity of Repubblika’s claims was provided by the Constitutional Court itself in its decision turning down a challenge by the NGO for Chief Justice Joseph Azzopardi to abstain from presiding over the case, argued Dr Busuttil.
In that decision, the court declared that the Chief Justice, as President of the Judicial Appointments Committee, made recommendations to the Prime Minister who held “final discretion” on the selection, so much so that “the Prime Minister can ultimately disagree with those recommendations by the committee and appoint persons who have not been approved by the committee, so long as he give reasons for this,” the court had pointed out.
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“That is precisely what we are saying. The PM has fearsome discretion” Dr Busuttil stressed, adding that the current system of appointments was causing “serious and irreparable harm” to the EU legal order and was not just limited to Malta.
Attorney General Dr Peter Grech countered that it would be premature for the case to be taken before the European courts when it had not yet been decided on the merits at national level.
The notion of interim measure was not evolved under ordinary civil cases before the Maltese courts, said Dr Grech, pointing out that even the term ‘interim measure’ itself did not form part of the jargon used by local courts.
Moreover, Malta's legal system provided for provisional measures in the form of warrants. Interim measures were called upon where human rights entered into play, such as sending a person back to a country where his life could be threatened.
The judicial appointments system has been in place since Independence, Dr Grech went on. “Why challenge it now after all these years?”
Moreover, a person who did not have “victim status” had no right to institute this case which had “judicial and political overtones,” he argued.
As for the parallels with the Polish case, “This has certainly nothing to do with Poland’s case,” Dr Grech said.
Chief Justice Azzopardi, presiding over the case together with Justices Giannino Caruana Demajo and Noel Cuschieri, adjourned the case for final judgment in September.
Deputy AG Dr Victoria Buttigieg also assisted the respondents.