Justice Minister Edward Zammit Lewis’s contribution ‘A stronger judiciary’ (November 18) contains historical and chronological errors and a distortion of events when he claims merit for increasing the retirement age of members of judiciary to 68.

In fact, way back in 2016, the opposition had presented a private members’ bill through Jason Azzopardi calling for an increase in such retirement age limit. This proposal was opposed by the government and, since such a constitutional amendment required a two-thirds majority, it fell through.

Indeed, the government had first agreed to increase the retirement age and then, for some inexplicable reason, withdrew its agreement. I had commented in this paper on such a fact with a contribution entitled ‘The amendment which never was’ (August 11, 2016) arguing the importance of adopting the Cyprus model of raising the retirement age to 68.

In reply to my contribution, the government had stated that the amendment was not proposed because it would not be just and fair to have judges and magistrates receiving a full pension at the age of 65 and still continue serving as members of the judiciary!

So, what the government actually did this time round was to eat all its words of the past. The opposition remained consistent. It was in favour in 2016, it is in favour today and voted in favour of what, after all, had been its own proposal.

As to the other constitutional amendments relating to the appointment and removal of members of the judiciary, these were generally discussed in the steering committee for constitutional reform chaired by the President of Malta. It was the opposition which, inside the committee, insisted on two matters: one, that there should be no role of the executive in the choice of candidates for appointment as judges and magistrates and, two, that the president acts on the recommendation of a judicial appointments committee in which the judiciary has a majority of members.

A Labour opposition never voted in favour of a candidate for the presidency proposed by a PN government – except when the latter proposed a Labour candidate- Tonio Borg

The opposition finally accepted a compromise that the president, acting according to his own deliberate judgment and not that of the government of the day, selects one out of three candidates proposed by the committee. This change also needed a two-thirds majority and the last-minute compromise was adopted with the opposition’s constitutionally-required consent.

As to the appointment of the President of Malta by a two-thirds majority of the members of the legislature and his removal from office by the said qualified majority, it was the opposition which had come out with this proposal. It is significant to note that the last two heads of state, whose names were proposed by a Labour government, were accepted by the opposition in the interests of national unity. So much for the accusation of a ‘negative’ opposition!

A Labour opposition never voted in favour of a candidate for the presidency proposed by a Nationalist government – except when the latter proposed a prominent member of the Labour opposition! Indeed, when the appointment of the current president was approved by parliament in April 2019, the then leader of the opposition had stated that the opposition would be proposing that the head of state be appointed by a two-thirds majority. A few weeks later, in an interview on Net TV, President George Vella had signified his agreement with such a proposal.

When the Venice Commission held a virtual meeting with the government and opposition in May 2020, it was only the opposition which came out with the idea that the head of state be appointed by a  two-thirds majority of all MPs. Later on,  the cabinet signified that it agreed with such a proposal but when the relative bill was published, it transpired that the government was going to retain the right to appoint the president by a simple majority in case the two-thirds majority was not obtained. Following last-minute negotiations, the government withdrew this fall-back clause and the opposition agreed to the constitutional amendment.

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I am not stating in any way that merit should not be given where it is due. The government could have opposed any amendment to the constitution, though the conclusions of the Venice Commission and the pressure the commission exerted would have made it politically difficult for the government not to act.  However, to claim merit for proposals, some of which were not even in the government’s mind or plans up to a few months ago, is indeed unfair and politically hypocritical.

Tonio Borg is a former European Commissioner.

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