Justice Minister Edward Zammit Lewis has publicly committed himself to reform Malta’s rule of law, particularly judicial appointments.
Here is a look at how the government’s proposals on judicial appointments compare with the expert opinion delivered by the Venice Commission in December 2018:
Ranking of candidates
What the Venice Commission recommended:
The Venice Commission recommended that the Judicial Appointments Committee should rank candidates vying for a judicial appointment using clearly defined and transparent criteria, while taking into account the goal of achieving gender balance.
What the government will do:
The government claims ranking candidates would have an “undesired and demeaning effect”, not only between candidates but also insofar as their professional reputation is concerned, possibly discouraging candidates to apply.
Instead, a report on each eligible candidate shall be sent to the president. The report will be drawn up based on pre-defined criteria and will prevent government influence, according to the Justice Minister.
Method of appointment
What the Venice Commission recommended:
The Judicial Appointments Committee (JAC) should propose a candidate or candidates directly to the president for appointment. Its proposals should be binding.
What the government will do:
When a vacancy arises, the JAC shall propose the three most suitable candidates for the role directly to the president. The president shall make the selection from among the pool of candidates.
The Venice Commission itself had noted in its report that the president’s role to appoint people to the judiciary is purely formal, as the Constitution says he must act “in accordance with the advice of the prime minister.”
The government did not clarify how the president will be able to appoint candidates recommended by the JAC, particularly if they are not even ranked, given the constitutional requirement to act in accordance with the prime minister’s advice.
Appointment of chief justice
What the Venice Commission recommended:
The chief justice should be appointed using the same method as any other member of the judiciary, i.e. upon a binding reference from the JAC to the president.
What the government will do:
The government has dismissed outright this proposal by the Venice Commission, citing Malta’s unique “socio-political” national context.
Zammit Lewis said it would also be awkward having the JAC appoint the chief justice, as judiciary members on the committee may well have an interest in the role themselves.
Instead, an “unprecedented” agreement has been reached with the opposition to appoint the chief justice through a two-thirds majority in parliament.
Advertising vacancies
What the Venice Commission recommended:
Judicial vacancies should be published and candidates from inside and outside the judiciary should apply to the JAC for a specific vacancy.
What the government will do:
The government says a rolling public call has proven the most effective method of attracting candidates. Like this, judicial vacancies are public and will be open to insiders and outsiders.
Composition of JAC
What the Venice Commission recommended:
At least half of the JAC should consist of members of the judiciary elected by their peers.
What the government will do:
Two judges and a magistrate will be elected by their peers to sit on the JAC.
What has the reaction been?
The Chamber of Advocates described the government’s proposed changes to the system of judicial appointments as “an encouraging move” which, save for the appointment of the chief justice, is set to eliminate “political motivation or undertone.”
In a statement on Thursday, the chamber described the proposals as a “welcome development that augurs well for the commitment towards creating a system of appointments devoid of political connotations.”
While pointing out that the government had taken on board almost all recommendations it had made, the chamber said that in the case of the appointment of the chief justice, its preference had not been taken on board.
Rule of law NGO Repubblika said it would be studying the proposals and would give a constructive opinion in the hope that “true and just reform will be put in place which will address and halt consequences of partisan appropriation of the judiciary that has been the case for the past seven years”.