Before Malta joined the European Union, its legislation was examined and found wanting with regard to the mechanism whereby members of the judiciary are appointed and promoted.

The system in place, inherited from colonial times, was open to abuse by the executive. In football terms, we were shown the ‘yellow card’, and told to reform this area of the law.

This vulnerability became glaringly obvious when Joseph Muscat nominated a large portion of new members of the judiciary often in function of their pro-Labour political leanings. In 2016, some cosmetic changes were made to the system, but none of these were effective in curbing the prime minister’s inordinate powers and abusive practice.

The 2018 Venice Commission report exposed what everyone in Malta already knew: the appointment and promotion of the judiciary in Malta does not conform to the standards required for a mature democracy. 

Following the publication of the Venice Commission report, Joseph Muscat appointed three judges and three magistrates, despite the fact that Repubblika had filed a judicial protest in court to stop him from doing exactly that. Consequently, Repubblika had no alternative but to institute legal proceedings against the government to stop this abuse.

On Repubblika’s request, and nothwithstanding the government’s implacable resistance, the Maltese court referred the question of the conformity of the Maltese judicial appointments system with EU law to the European Court of Justice. The case will be heard in the coming months.

Malta cannot afford another pseudo-judicial reform

As soon as Robert Abela became prime minister, he declared that with regard to matters of justice, he speaks the same language as Repubblika. He appointed a new minister of justice and created a committee to propose a new system for appointing and promoting the judiciary.

The government finally acknowledged the fact that the so-called reforms put into effect after 2016 did not ensure the independence and impartiality of the judiciary.

Last Saturday, Justice Minister Edward Zammit Lewis wrote an article in the Times of Malta where he declared: “We are now mere weeks away from presenting our new proposals to appoint the judiciary and the chief justice.” He also claimed: “The appointment of the chief justice, backed by the unanimous approval of parliament, clearly demonstrates how government is serious in attaining national reconciliation.”

The words “national reconciliation” are inappropriate. Malta is not composed of ethnic groupings that need to be “reconciled” as in the case of, for example, South Africa in the past.  Maltese reality is such that a parliamentary majority took advantage of a system that was open to abuse by actually abusing it.

Rather than speak of reconciliation, the minister should be looking out for a proper legal mechanism to appoint our judiciary.

In a new setup, care must be taken, first and foremost, to ensure that any power in appointing or promoting members of the judiciary that will be attributed to the executive or legislative branches of the state shall not be greater than that attributed to the judiciary itself.

At the same time, any measure adopted must take into account the fact that the system was abused, certainly after 2013.

We must ensure that any future attempt by the government or parliament to deny us an independent and impartial judiciary meets in-built hurdles and delaying mechanisms.

For instance, one should consider the possibility of including in the new judicial appointments committee former chief justices with a clean record and who are not put on government payroll following their retirement.

One should also consider the possibility of enacting rules whereby only sitting members of the judiciary with 10 years judicial experience would be eligible for election to the said committee by their peers.

While Joseph Muscat was blatantly abusing his power, neither Robert Abela nor Edward Zammit Lewis ever voiced their condemnation of such abusive tactics.

Our new prime minister must look at Malta’s interests, not those of his party, or any other political party for that matter. Malta cannot afford another pseudo-judicial reform.

Robert Aquilina, President-elect, Repubblika