News of a public call for applications which will lead to the appointment of four new judges has finally brought into being a proposal made in parliament almost a decade ago by then Nationalist MP Franco Debono.

It is possibly the greatest recent change introduced to the judicial system so far, throwing wide open the application process to all those interested and eligible, instead of the select few who are in the minister’s good graces.

Debono had on February 13, 2012 proposed an application process for judicial appointments, telling in Parliament’s Re-Codification of Laws Committee that:  

“Since if a person is a fit, even an ideal candidate, but the Minister never chooses him/her, s/he cannot go to the Minister to complain that he wishes to become a member of the judiciary. That person could be the best candidate in Malta, with the best qualities and greatest experience but never chosen or appointed under the current regime. Hence, if you have a formal process of application, there is a wider range from where the eventual choice could be made.”

As with other “seeming novelties” which have recently seen the light of day in Malta’s present justice system, this can be traced back to the holistic justice reform tabled in Parliament on November 8, 2011 by Debono. With judicial appointments at the time depending exclusively on unfettered ministerial discretion, the idea of having an application process, thus widening the accessibility to such appointments, was part of proposal 10 of that justice reform, which also focused on revising eligibility and selection criteria for the judiciary, their retirement age and conditions of work.

It is worth revisiting the discussion which the Committee on the Re-Codification and Consolidation of Laws had held at the time about creating an application process for judicial posts.

The law at the time vested the prime minister with the sole power to decide who entered the judiciary, leaving a class of lawyers who although equally competent to become members of the Bench would always classify as the also-rans if unknown to the prime minister.

As Debono had noted, lawyers were “basically dependent on the grace of the Minister and whether the Minister fancies you or if you are close to him, besides which there are no other criteria.”

This system left the State and the judicial system much the poorer by denying itself the benefit of the service of innumerable legal minds who had no way to apply for the posts.

At a time when no NGO was speaking about judicial appointments, and when speaking about these issues was not only not in fashion but almost taboo and earned one insults from certain bloggers, Debono had not succumbed to ferocious attacks.

On February 7, 2012,  he had warned: “One might have someone who possesses all the good qualities, and who the country could benefit from... yet this person is never appointed. Why? Because there is no transparent method. No one can ask: why have I not been chosen?”

Debono termed this as “one of the major questions in our judicial system and if we shall not tackle it, then we are wasting time.”

Later, on February 23, 2012, the same parliamentary committee, assisted by the dean of the faculty of laws Kevin Aquilina, had shortlisted two methods for appointing members of the judiciary: a formal criterion in the form of the number of years a lawyer has exercised the profession, and a substantive measure, which centres around the person’s integrity.

Hence an initial application process, with applications subsequently evaluated by a Judicial Appointments Committee - another idea hatched in that 2011 reform proposal which came into being in 2016 and was further upgraded in legal amendments introduced in 2020.

The Judicial Appointments Committee, set up in Article 96A of the Constitution as a sub-committee to the Commission for the Administration of Justice, is tasked with evaluating applications for judicial appointments bar that for Chief Justice, who is appointed by a two-thirds mechanism in parliament.

It has taken almost a decade of trials and tribulations for what was proposed in parliament in 2011 to see the light of day. Some areas of reform remain unimplemented to this very day, but this latest reform is much-welcome news.

More needs to be done, however. Judges and magistrates need to have better working conditions, resources, training and staff, even though even here, in recent months the country has advanced by leaps and bounds. 

Franco Debono in 2011. Debono, at the time a PN MP, had proposed many of the reforms now being adopted. Photo: Jason Borg

This historical development has local roots. It was proposed almost a decade before the Venice Commission made its recommendations, and if the proposals made in Parliament a decade ago had been acted on sooner, there would have no need for that Commission’s scrutiny: little of what it concluded had not already been proposed in Debono’s private members' motion 260.

Some of those who clamoured for the Venice Commission to have their say were among those attacking Debono when he first made these proposals all those years ago. Had they not done so, perhaps these important reforms could have been implemented by a Nationalist administration, before 2013.

If this country wants to move away from its tribal polarised mode, it should acknowledge the genuine work of dedicated MPs. Better late than never. Ultimately, history is the best judge.

Francesca Zarb is a practising lawyer and holds a Masters degree in International and Transnational Criminal law from the University of Amsterdam.