A decree of the Court of Appeal for the Chief Justice to abstain on a particular case runs counter to the spirit of EU law, according to a senior lecturer and author in EU law at the University of Aberdeen.
In last week’s decree, the court rejected the request by the NGO Repubblika for the Chief Justice to abstain from appeal proceedings related to appointments of new members to the bench. It did this on the basis of provisions in Maltese civil procedural law as well as absence of what the court termed “objective reconstructable basis”
But Justin Borg-Barthet told The Sunday Times of Malta: “The narrow view taken by the court suggests that instead of applying the spirit of EU law, the court applied the letter of the Maltese law – and EU law relies on the application of the spirit of its provisions.”
By ‘spirit’ of EU law he is referring to broad concepts of the EU treaty which are continuously developed in judgments by European constitutional courts and most significantly the European Court of Justice.
The latter has developed the jurisprudence surrounding judicial impartiality into ‘a new sphere of EU law’, according to a paper in University of Cambridge’s European Constitutional Law Review. EU law has primacy over national law.
instead of applying the spirit of EU law, the court applied the letter of the Maltese law
Ongoing court saga
The appeal is the latest episode in the court saga that began on April 25 with a complement of six judicial appointments and the filing of Repubblika’s lawsuit on the same day.
Repubblika’s lawsuit challenges the appointees, as well as the system of appointments of the judiciary, under provisions in EU law, the Maltese Constitution, and the European Convention of Human Rights. It requested interim suspension of the appointees, as well as referring the dispute to the European Court of Justice for its direction.
The government attempted to fight the lawsuit by raising 13 ‘preliminary’ objections, but presiding judge Mark Chetcuti decreed that Repubblika had a juridical claim under EU law.
Both parties appealed against the decree and, in another twist, Repubblika’s lawyers then requested the recusal of the Chief Justice from appeal proceedings on the basis of his chairmanship of the Judicial Appointments Committee (JAC) which had endorsed the six appointees challenged in the lawsuit.
The court rejected the request because the JAC’s role, it argued, is limited to making recommendations on applicants’ eligibility and merit, and its recommendations do not necessarily lead to any judicial appointment, which is “always left to the Prime Minister’s discretion.”
Persuasive argument for recusal
“There are two ways to read into this,” Dr Borg-Barthet said. “If you take that argument at face value, it is being confirmed that the scrutiny of the applicants by the JAC is just a facade because the decision is taken by the executive. That confirms that there is a problem with appointments.
“On the other hand,” he added, “the appearance is that the Chief Justice endorsed those appointees in the committee, and therefore he is party to the decision that is being contested. There is a persuasive argument for recusal.”
If you take that argument at face value, then the scrutiny of applicants by JAC is just a facade
Other senior academics and a veteran judiciary who spoke on condition of anonymity maintained that the mere “appearance” of what is known in jurisprudence as objective impartiality constituted rationale for abstention.
A source close to the European Court of Human Rights (ECtHR) spoke of “much case-law” on the matter. This includes the judgment in Volkov vs Ukraine in 2013 in which that court, delving into the “requirement of objective impartiality”, said that “even appearances may be of a certain importance or, in other words, ‘justice must not only be done, it must also be seen to be done’.”
The ECJ also touched upon the matter in last month’s seminal Polish judgment, in which it spoke of the requirement for rules in matters including grounds for abstention which would dispel any reasonable doubt of the court’s neutrality.
The case continues on Monday.
'Judiciary merely interprets the Constitution' - government
In a response on Sunday, a justice ministry spokesman said the case was not about the competence or suitability or any individual judge to hold office, but about the manner in which members of the judiciary were appointed.
The spokesman said the current system, under the Constitution, had been in place since independence with improvements made by unanimous approval of Parliament in 2016.
"The innuendo that the Judicial Appointments Committee is merely a façade is simply not borne out by that Committee’s track record and the argument that the Chief Justice was a party to the decision that is being contested because the Judicial Appointments Committee approved the individual competence of all appointees since 2016 simply does not follow. The Judiciary does not draft the Constitution but interprets and applies it," the spokesman said.