Malta is insisting that control of appointments to its judiciary “cannot be completely left to the judiciary itself”.
The position is reflected in a yet-to-be-published report on Malta – seen by The Sunday Times of Malta – drawn up by the Council of Europe’s advisory body on democracy through law, known as the Venice Commission.
The Maltese authorities’ stand on the issue is followed by a defence of the current system, in which the prime minister has final discretion on judicial appointments and can even go “against the advice of the Judicial Appointments Committee”.
The highly respected Venice Commission provides legal advice to Council of Europe Member States to help bring their legal and institutional structures in line with European standards. On Friday, it issued a statement in which it said the rule of law in Malta was being hindered by power imbalances. The final version of the report is expected to be published on Monday.
The clause in question, put into the report on the insistence of the government, may lay the ground for watering down one of the Commission’s chief recommendations: that ‘vetted’ and ‘ranked’ applicants for magistrates or judges be recommended by the Judicial Appointments Committee “directly to the President”.
This would strip the prime minister of some of his powers, seen as excessive by the Commission, and doubly buttress the independence of the judiciary.
Speaking to The Sunday Times of Malta, Martin Kuijer, co-author of the report and an eminent human rights scholar, described the mission’s “second most important finding” in the “judicial apparatus”.
“It’s a small judiciary, and our focus was on the system of judicial appointments to make the judiciary more independent,” he said.
The government predicated its reasoning on “the small size of the judiciary” of 44 magistrates and judges, logic that earned rebuke from a senior source in the justice system who preferred to remain anonymous.
“So, 44 members of the judiciary cannot decide who should be appointed a member of the judiciary because of small size, but then the decision shall be left in the hands of one man,” the source said sarcastically.
The Maltese authorities also state that the present system of appointments, with final say vested in the prime minister, “reflects a proposal of the 2013 report on the Holistic Reform of the Justice System.”
However, in the 2013 report, which is publicly available, nowhere is it written or implied that the prime minister should have final say on who is appointed magistrate or judge.
In fact one of the report’s authors, the Dean of Faculty of Laws Kevin Aquilina, has since criticised in various outlets the current system of judicial appointments which was made law in 2016.
The Venice Commission put up resistance to the clause included at the “insistence” of “the authorities”. It countered in another clause that will appear in the final report that the government’s concerns that “checks and balances” would be missing if the judiciary chose their brethren for appointment would be balanced by the inclusion of non-judicial members in the body selecting judges.
It also countered the government’s arguments that the Chief Justice should not be appointed by the judiciary but by the government “in consultation with the Leader of the Opposition”.
The PN’s leader Adrian Delia told The Sunday Times of Malta last month that the PN wants the judiciary to have “a really autonomous system of judicial appointments”.