Reference is made to the article entitled “A distortion of events” by Tonio Borg (November 21) whereby it was stated that Justice Minister Edward Zammit Lewis falsely claimed merit for increasing the retirement age of members of the judiciary to 68.

In his attempt to untangle an allegedly distorted version of facts, Borg only contributes to the confusion of which he complains, with a blind and intended focus on the  2016 Opposition’s motion as if it was then that the sun rose for the first time and shone on this proposal.  However, nothing is farther from the truth!

Concerns grow further since the same article was penned by a constitutional law lecturer at the University of Malta, a lawyer and a former justice minister who was deputy Prime Minister when the same debate was raging right in front of his eyes, when he was duty-bound to act and chose to look the other way.

The blanks left in the above-mentioned article, in a feeble attempt to wrongly pin the genesis of this debate, should be filled by the names of learned judges, lawyers and members of Parliament who were the voices of change and who should be the ones to be saluted.

The 2016 Opposition motion which he mentions came years after he had neglected his duty to implement these reforms when they were being originally proposed.

Indeed as far back as October 2009, when Tonio Borg was Deputy Prime Minister and thus in a formidable position to implement these reforms, it was then Chief Justice Emeritus DeGaetano who addressed the issue during the opening of the judicial year, reminding then Minister of Justice Mifsud Bonnici of his proposal to increase the age of the judiciary to 68. He had pointed out that Malta had one of the youngest age of retirement of the judiciary when compared to other European Union countries.

It was on November 8, 2011 that the same proposal was made in Parliament by then PN backbencher Franco Debono in private members’ motion 260 of the Eleventh Legislature on a wide-ranging justice and constitutional reform including, the revision of the number of years, and experience required, for the appointment of the judiciary, as well as the whole procedure of the method of selection, of the retirement age, as well as the working conditions of the judiciary.  At that time Tonio Borg was Deputy Prime Minister. It is next to impossible that he is not aware what a backbencher in his government was saying in parliament!

Even earlier than that, on June 28, 2011, Debono had made reference to the fact that many judges were being lost in their best years due to the low retirement age. He had stated, ”We lost some of our best Judges as Filletti, Camilleri and Galea Debono in their prime. And today you see them some years later still in their peak. Judges accumulate a wealth of experiences over the years and this leads to better results and better judgments’’

The same proposal was also discussed in the Parliament Select Committee [Re-codification and Consolidation of Laws] presided also by Franco Debono, with Jose’ Herrera and Francis Zammit Dimech as members. Again in February 2012, Debono made reference to the same proposal in parliament, stressing the importance of both wisdom and to knowledge of the law in the discharge of judges’ functions – ‘’Judges accumulate wisdom over the years, as knowledge of law is not enough; the law is there, anyone can look it up and find it, but to judge cases it take much more, one needs to decide who is saying the truth and who is lying. And this comes with experience.’’

Then on December 5, 2012, then Justice Minister Chris Said signed an agreement with the judiciary which was approved by Cabinet stating that the retirement age of the judiciary should rise from 65 to 68, effectively seeking to implement Debono’s proposal in the same legislature.  The Bill was however never debated in parliament, as the legislature was nearing its end.

So Tonio Borg’s much-vaunted 2016 Opposition proposal, about a proposal the Nationalist Party had failed to implement when in government even when one of its own MPs had proposed it,  arrived years after this proposal was first formulated outside parliament by Judge Degaetano and in parliament by Franco Debono, with work done on the same proposal by Chris Said. As far as I know, 2016 is seven years after 2009 and five years later than 2011!

In 2018, the Venice Commission also made reference to  “extend the retirement age if sitting judges retain a possibility to retire under current rules.”

Thus, the November 2020 enactment to increase the judiciary’s retirement age to 68 was the final step in a journey that had started in 2009, when Borg was Deputy Prime Minister, and not in 2016 as he erroneously stated.

Borg is also wrong when he writes about introducing a two-thirds majority requirement to appoint the President. The issue wasn’t proposed in parliament for the first time in 2016, but at least six years earlier, in 2010 by then-Nationalist MP Franco Debono, and possibly even before that by others.

As a recently graduated lawyer who holds in esteem those who played a role in moulding the legal profession, it is very disappointing to see Tonio Borg create a blindsided, partisan narrative in a desperate effort to absolve himself of inaction over various years in government office.  Instead of acknowledging that he failed to act and implement when he was duty-bound to do so, Tonio Borgs seeks to distort facts.

It is indeed, as Borg himself stated,  “unfair and politically hypocritical” for one to claim merit which should not be attributed to him/her. In the article in question, this reasoning applies mostly to none other than Borg himself, as the documented and easily accessible facts referred to above clearly show.

Francesca Zarb is practising lawyer and holds a Masters Degree in International and Transnational Criminal law from the University of Amsterdam