Piecemeal constitutional reforms risk undermining rule of law - Repubblika

Piecemeal constitutional changes risk undermining Malta’s democratic checks and balances, Repubblika warned on Thursday.

In its detailed response to the constitutional amendments proposed in Bill No. 134, the rule of law NGO renewed calls for the Constitutional Convention—first promised in 2012—to be convened. This convention should, it said, "deliberate a holistic scheme of constitutional reforms to renew Malta’s democracy and constitutional governance and, among other things, protect and enhance the independence of the judiciary."

First introduced in Parliament by Justice Minister Jonathan Attard last week, the Bill proposes significant reforms aimed at enhancing the independence, efficiency, and accountability of Malta’s judiciary. The amendments are designed to strengthen the rule of law by ensuring a more independent and effective judicial system.

Key provisions of the Bill include:

• Allowing judges and the Chief Justice to be eligible for appointment as President of Malta, removing the current prohibition;

• Establishment of three sections within the Constitutional Court, aiming to improve the court’s capacity and efficiency;

• A formal consultation process with the judiciary in the appointment of the Chief Justice;

• Extension of judicial tenure to age 70, subject to approval by the Commission for the Administration of Justice;

• Revisions to disciplinary procedures for members of the judiciary;

• Establishment of a Commissioner for Standards in the Judiciary, who would oversee disciplinary proceedings.

‘Undermining judicial independence’

Repubblika said it opposes the proposal to allow judges to be appointed President of Malta, arguing it could compromise judicial independence.

“The independence of the judiciary is better assured when no incentive or reward in the form of appointment to high public office can be offered to a retired member of the judiciary,” it said.

While not objecting to the creation of court sections, the NGO questioned whether the proposed changes would genuinely improve the efficiency of Malta’s highest court.

“There appears to be no credible effort to increase the specialisation of judges in this court or to increase the resources allocated to it,” it said.

Repubblika also warned that consulting the judiciary in the appointment of the Chief Justice would not be enough to secure judicial independence. It pointed out that the European Commission has consistently stressed that the judiciary should play a central role in selecting its presiding officer.

A potential conflict of interest also arises, the NGO said, if a retiring Chief Justice were to be appointed President.

“The proposed consultation could take place after the Chief Justice retires—when his role, including the obligation to represent fellow judges, has ended,” it said.

“With the amendment allowing a judge to become President, the retiring Chief Justice could effectively be negotiating his post-retirement prospects. This is the opposite of what the independence of the judiciary should be.”

It added that the wording of the proposed law does not require the Prime Minister to act on the Chief Justice’s advice regarding the choice of successor. “The legislative branch will retain full discretion to choose who leads the judicial branch, which is meant to be entirely independent of it.”

“This goes against the repeated advice of the European Commission, which has said that Malta should comply with international norms of judicial independence.”

Repubblika proposed that the Chief Justice be selected through the Judicial Appointments Committee, as are other members of the judiciary, without interference from government or parliament.

Concerns over transparency and discretion

The NGO also criticised the proposal to no longer publish the names of candidates who are not selected for judicial posts.

“We do not understand why anyone should feel embarrassed for being considered but ultimately not selected,” it said, warning the change would reduce transparency and public accountability.

It welcomed the extension of the retirement age for judges to 70 but criticised the wording of the clause, which makes the extension subject to the discretion of the Commission for the Administration of Justice. This, it warned, could influence the behaviour of judges nearing retirement.

Repubblika also pointed out that the Commission lacks the financial and human resources needed to fulfil its oversight role effectively and argued that no members should be appointed directly by government or parliament.

The NGO challenged the suggestion that delays in Malta’s judicial system are solely due to the judiciary’s productivity, insisting that the problem lies in chronic under-resourcing.

“The amendment implies, wrongly, that the delays plaguing Malta’s judicial system stem solely from the poor productivity of judges and magistrates, when it is clear that there are major shortcomings in the human, financial, and spatial resources allocated to our courts,” it said.

Finally, Repubblika expressed concern about the inclusion of a clause relating to the appointment of the Auditor General within a bill that otherwise deals almost entirely with the judiciary.

“These are two separate organs of the State and should be addressed in separate legislative instruments,” the NGO said.