The government was quick to point out that the Constitutional Court hearing a case instituted by the NGO Repubblika, challenging the latest appointments to the judiciary and the selection system as a whole, had not ordered the government to desist from making any more appointments pending a final decision on whether the system is in line with European law. It also welcomed the fact that the court rejected Repubblika’s submission that the matter could be compared to the situation in Poland, which has been denounced by the European Court of Justice.
Still, the judgment can be considered a shot across the bow. The Constitutional Court conceded that using the method of appointments in the past does not necessarily make it satisfactory today, and allowed the case to resume before a lower court.
The Chief Justice made a fleeting reference to the matter in his traditional address at the opening of the Forensic Year. He pointed out that controversies on judicial appointments had erupted before and highlighted the fact thatthe Maltese judiciary enjoyed a good “tradition”. He also stressed the point that the Judicial Appointments Committee did not serve as a “rubber stamp”, as some might believe.
However, there are valid reasons why some continue to suspect that the government has more than a finger in the pie when it comes to appointing judges and magistrates.
Several issues have been brought up in the course of the proceedings. Are the latest constitutional changes on the appointment of the judiciary in line with EU legislation? Is the situation in Malta comparable to what took place in Poland? Should the case be referred to the ECJ for its interpretation? Should the Justice Minister have been a party to the case? But the one issue that really counts, at the end of the day, is whether the way judges and magistrates are selected inspires, indeed guarantees, the level of public trust and confidence that the courts must enjoy.
The Venice Commission specified last December that the Judicial Appointments Committee’s role is to identify a pool of candidates for the judiciary from among whom the Prime Minister “has an uncircumscribed statutory discretion to appoint judges and magistrates”. He can also overrule the committee by appointing a person who has failed the vetting, though in this case the Prime Minister would have to make a statement in Parliament explaining his action.
The courts, as former chief justice Silvio Camilleri had pointed out at the opening of the forensic year in 2017, are the final bulwark in the defence of the rule of law. The Venice Commission has noted that public trust in the proficiency of the judiciary to operate in an independent and impartial manner is of vital importance for the rule of law.
The European Court of Human Rights has held that when considering a tribunal’s independence one had to bear in mind the way in which its members were appointed, their term of office, the existence of safeguards against outside pressures and even whether it presents “an appearance of independence”.
Still, the government is unbending in its stance that the current procedure of making judicial appointments should be retained. Perhaps the latest judgment, with its suggestion that the method of appointments may not be suitable for modern times, will prompt it to take remedial action soonest.