Two experts who formed part of the Justice Reform Commission have launched a scathing attack on the Bill presented by the government, describing it as “fake”, “autocratic” and “unconstitutional”.
Giovanni Bonello, a constitutional expert and former judge at the European Court of Human Rights, was asked about the Bill after comments made by Kevin Aquilina, Dean of the Faculty of Laws at the University. Dr Bonello headed the commission and Prof. Aquilina was a member.
Following the Bonello Commission’s recommendations made in 2013, Justice Minister Owen Bonnici presented a Bill last week reforming mechanisms used to appoint and discipline judges and magistrates.
Prof. Aquilina, whose comments are carried on today’s back page, brands the Bill’s proposed system of discipline as “flawed”, “unconstitutional” and befitting an Inquisition.
The Bonello Commission had proposed a disciplinary authority that would include a judge and magistrate elected by the judiciary in order to guarantee independence.
Instead, the Bill proposes a three-member committee drawn from the Commission for the Administration of Justice, relegating the independence of the judiciary to the “legal history books”.
The Inquisitor would surely have loved Minister Bonnici’s Bill
Drawing a parallel with the notorious Roman Inquisition in Malta during the reign of the Knights, Prof. Aquilina says the Inquisitor “would surely have loved Minister Bonnici’s Bill”.
Dr Bonello said he could not fault Prof. Aquilina’s conclusions.
“The proposed Bill was, we presume, well meaning, but needs to be thought through more carefully.” However, any structure for the discipline of the judiciary should not be set up at the expense of its independence, he said. “Discipline cannot in any way be seen to diminish independence, nor be seen to render the judiciary subservient to Parliament or the political executive.”
The proposal of the reform commission unanimously presented a wholly different system of disciplining the judiciary.
“We proposed disciplinary structures that would not have the possibility of being abused or of rendering the judiciary subservient to the politicians of the moment.”
If the Bill was intended to bring Malta into the 21st century on judicial appointments,“it fails its purpose”. Malta was the only democracy in Europe where the judiciary was currently appointed and promoted by political diktat – the personal prerogative of the Prime Minister.
“Any lawyer who aspires to become a magistrate must enjoy the Prime Minister’s favour; any magistrate, to become judge, must enjoy the Prime Minister’s favour; any judge, to become Chief Justice, must be in the Prime Minister’s good books; any judge or chief justice, to become judge in an international court, must partake of the Prime Minister’s benevolence.
“Where does this system, that glorifies subservience, leave the independence and impartiality of the judiciary?”
The Bill would only serve to make the situation worse and to fortify the PM’s prerogative.
The government was proposing an independent commission whose remit would be to investigate candidates for the judiciary and make recommendations, but the Prime Minister would not be bound to respect it.
Any lawyer who aspires to become a magistrate must enjoy the Prime Minister’s favour
“He can proceed to appoint whoever he wishes at his absolute discretion, even outside the list which was considered by the selecting commission, without giving reasons for his choice.”
In spite of skirting the advice, the Prime Minister would still be deemed to have followed the commission’s proposals, as by law its deliberations would be secret.
“The new Bill gives a fake mantle of reform which only strengthens the most absolute autocracy,” Dr Bonello said.
Bringing in his own historical parallel, he added: “Grand Master Pinto could not have wished for more in connection with the appointment of the judiciary.”
Dr Bonello had once described Pinto as a model for abuse by the Knights.