Repubblika has come under fire for having taken the Government of Malta to the European Court of Justice in Luxembourg regarding judicial appointments. Repubblika has been accused of capriciously making Malta spend €80,000, because the reforms it was fighting about had already been effected.
The accusation begs the question: why did the government, which has just appointed a state advocate paid by Maltese taxpayers’ money, not send its own officials to represent it? The job description of the state advocate on the government website states explicitly that the office: “is tasked to […] safeguard the legality of state action” and that “the law officers serving at the Office of the State Advocate advise government on all legal matters and deal mainly with civil, administrative, constitutional and European Union law matters.”
Is one, therefore, to conclude that our government does not have enough trust in the capability of the lawyers it employs or that its doubts with regard to their competence made it prefer to pay €80,000 to foreign lawyers, who are not as familiar with our constitution?
As our government embarks on its latest witch-hunt and demonisation exercise against Repubblika and its lawyer, Jason Azzopardi, let us recall why Repubblika took its case before the 15 judges composing the Grand Chamber in Luxembourg.
Article 6 of the European Convention of Human Rights states: “Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.
Repubblika maintains that the system of judicial appointments and, in particular, those made in 2019, did not guarantee an “independent and impartial tribunal”. The figures speak for themselves: 21 out of the 29 judicial appointments made since 2013 have favoured former Labour officials, candidates, ministers, relatives and friends of friends – a 64 per cent transformation in the composition of the judiciary, who will remain in office until retirement.
In its criticism of the lack of independence of various state institutions, the Venice Commission had stated that the Maltese system of appointing judges – which follows a provision dating back to the 19th century – is highly outdated. In 2016, the government introduced a Judicial Appointments Committee (JAC) to select a pool of names but the prime minister retained the faculty to disregard any and all of the names suggested and appoint whoever he liked and pleased to the judicial posts.
In March 2019, Owen Bonnici, then minister of justice, wrote to the Venice Commission outlining the government’s plans for reform. Though he gave precise timelines for the changes regarding the police, the ombudsman, the attorney general and the civil service, he refrained from specifying when the reforms affecting the judiciary would take place. When the Venice Commission asked whether judicial appointments would be “frozen” until the judicial reforms were established, Bonnici refused to reply.
“21 out of the 29 judicial appointments made since 2013 have favoured former Labour officials, candidates, ministers, relatives and friends of friends”- Vicki Ann Cremona
On April 25, 2019, Malta understood the reason for Bonnici’s silence. That day, his boss, the disgraced Joseph Muscat, hurriedly and arbitrarily appointed six members of the judiciary before launching any reform. Repubblika went to court that same morning to try to stop the appointments, arguing that the reforms concerning the judiciary had to take place before any judicial appointment was made in order to guarantee transparency and impartiality. Despite this, three judges and three magistrates were appointed at 2.30 that same afternoon.
Repubblika then asked the Constitutional Court to nullify the appointments. It requested the court to refer the case to the European Court of Justice to determine whether the system under which the judicial appointments were made was in breach of the European Treaty and the Charter of Fundamental Rights. On October 27, 2020, Repubblika and its lawyer were in Luxembourg to plead their case.
Repubblika contends that, even though there is no single constitutional model in Europe, it is imperative that fairness and judicial impartiality are guaranteed.
The government’s argument against Repubblika is that the reforms on the judiciary were made in August 2020. I shall not go into the reprehensible way in which these reforms were rushed through in the last hours of the last day of parliament before the summer recess. What is certain is that, though the government had assured the Venice Commission that, before any reform was undertaken, there would be widespread consultation, no consultation of any form took place.
Justice Minister Edward Zammit Lewis’s pathetic contradictions would have been amusing had they not been utterly deplorable. Although he acknowledged that the possibility of a structured dialogue with stakeholders and civil society is required by Malta’s legislative process, he offered the disturbing excuse that the government consulted social media, “from online media to personal blogs”, without explaining exactly which social media were consulted, who consulted them and what criteria were applied for the government to reach its conclusions. He then relegated the job of consulting civil society to the Venice Commission itself, as though it was up to the commission to make the reforms.
Repubblika is determined to ensure that any Maltese government, of whatever colour, aiming to play around with Maltese institutions will be stopped in its tracks. The government is hell-bent on covering up its latest mess by a new capricious demonisation exercise. The assassination of Daphne Caruana Galizia has shown Malta and the world where this has led to in the past.
Let us all stand firm and ensure that no new witch-hunt is allowed to happen. Let us make certain that no one, including Robert Abela, will dare interrupt any investigations into the truth in order to cover up the nauseating network of high-level corruption that is being revealed in our courts.
Vicki Ann Cremona is a former president of Repubblika.