A court on Monday continued to hear arguments for and against a call by NGO Repubblika for a preliminary reference to the European Court of Justice on the manner of appointment of the members of the judiciary.

The Civil Society Organisation filed the case in the context of the recent appointment of three judges and three magistrates, arguing that the government should have first implemented the recommendations of the Venice Commission to guarantee the judiciary's independence.

The NGO is also calling for interim measures so that the newly appointed judges and magistrates would not be assigned their duties until this case is decided.

Legal counsel Simon Busuttil said ordinary citizens had a right to take their grievance before the national courts where they could ask those courts to effect a reference to the European Court requesting a preliminary ruling on some point of European law. 

In this case, the reference was to focus upon whether the prime minister’s discretion breached the principle of independence of the judiciary; whether the Maltese courts were to declare such system as irregular and order its suspension pending change; to declare appointments made under current system as null and void; and, that future appointments be blocked until a final decision on the merits of this case was taken.

“It’s compelling to effect a reference. It’s crucial, if anything, for legal certainty,” stressed Dr Busuttil. He wondered what would become of judgments delivered by these newly appointed members of the judiciary if their appointment was to be annulled.

What would happen in the case of European Arrest Warrant proceedings?

“Imagine sending a person to another country for prosecution when he ought not have been sent, or vice versa?” 

“What worse harm can there be than a judge hearing a case when he should not have been a judge?”

Referring to the most recent appointments of three judges and three magistrates in one day, Dr Busuttil argued that these were indicative of a “rush” on the part of the government to fill all those places.

It was in the interests of justice and legal certainty to avoid a situation of “irremediable” harm, he stressed, insisting there was no “halfway independence of the judiciary.”

Attorney General Peter Grech, representing the prime minister and the justice minister, said that the case pivoted upon the government's discretion to nominate members of the judiciary.

The Venice Commission’s report, although authoritative, was not binding and was only an opinion, argued Dr Grech, pointing out that “with all due respect”, it would be “absurd” to base a reference upon an opinion.

Opinions fell within the realm of the political process and the greatest danger in these proceedings was that a political issue was being discussed before the judicial fora.

Repubblika’s request for a preliminary reference was frivolous, lacked basis and if entertained would ridicule the country, he said. 

The Venice Commission had not made sweeping statements but had pointed out that the members of the judiciary were to be appointed on their merits and without any undue influence in the process, Dr Grech went on.

As for arguments challenging the validity of such appointments, Dr Grech remarked, “What if someone were to say that Malta’s independence was null, hence all appointments thereafter were to be annulled.”

Mr Justice Mark Chetcuti said a case involving the judiciary must not be left pending for weeks or months. He put off the case for judgement on May 29.

The sitting was attended by several members of Repubblika as well as by the justice minister who listened attentively throughout the proceedings.

Lawyer Karol Aquilina also appeared for Repubblika.

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