Victor Paul Borg explains the latest development in the lawsuit against Malta’s judicial appointments system – and why it is groundbreaking.

Last Friday’s judgment of the Constitutional Court, in the constitutional challenge by the NGO Repubblika to the system of judicial appointments, has opened the way for the case to be referred to the European Court of Justice (EJC).

It has also historically set the stage for anyone to challenge, through provisions in the Maltese Constitution, any law that might be incompatible with EU law. 

The decision has dramatic implications for the system of judicial appointments as well as the six appointees of last April 25 which triggered the lawsuit in the first place.

Those appointments have been thrown into greater uncertainty than ever before.

It has become clear that the government wrong-footed itself when it ploughed ahead with April’s appointments despite the Venice Commission’s portrayal of the judicial appointments system as falling short of ensuring the independence of the judiciary.

Sources have told Times of Malta that there is palpable concern among justice officials that we may be heading towards the “constitutional mess” forecast by eminent legal scholar and former dean of the Faculty of Laws Kevin Aquilina. 

What are the issues and the lawsuit? 

In the international glare on Malta after the assassination of Daphne Caruana Galizia, as well as the stalled investigations and shirked accountability following the Panama Papers expose, questions on judicial independence became a recurrent theme of Malta’s rule-of-law weaknesses.

This culminated in last December’s report by the Council of Europe’s Venice Commission which considered the Prime Minister’s discretionary power to make judicial appointments as an impingement on judicial independence.

The government accepted the necessity of reform. But then it forged one of the largest complement of appointments in a generation on April 25 – six appointments that were denounced as “rushed” and “in bad faith” by Prof. Aquilina.  

This prompted Repubblika’s constitutional lawsuit. The NGO asked the court, among others, to nullify the six appointments and prevent further appointments until the system was changed along the lines recommended by the Venice Commission.

Repubblika’s lawyers posited that the 2016 law setting out the current appointments system is incompatible with fair trial provisions of the European Convention of Human Rights as well as the “effective legal protection” afforded to EU citizens in Article 19(1) of the Treaty of the European Union (TEU).

If the six appointments of last April are revoked, as Repubblika has requested, it would nullify all their judgments and decrees

They then requested the Civil Court, First Hall in its constitutional jurisdiction, presided by Mark Chetcuti, to refer the case to the ECJ under the so-called “preliminary reference procedure”.

The government attempted to torpedo the lawsuit by raising 13 technical objections. But Mr Justice Chetcuti decreed that Repubblika had legal traction under the EU Treaty. He also stated that he would decide at a later stage whether to refer the case to the ECJ.

Both parties appealed, and in last Friday’s judgment, the three judges on the Constitutional Court, presided by the Chief Justice Joseph Azzopardi, decided that the case can continue in the court of Mr Justice Chetcuti.

Why is the judgment historic?

It was an innovative judgment first because it reconfirmed the decision that Repubblika had a claim under EU law. Then, it went a step further: it coupled the concept of effective judicial protection – a derivative of effective legal protection – in EU law to Article 116 of the Malta’s Constitution.

In doing so, it expanded the dimension to Malta’s actio popularis – the ability of legal campaigners or NGOs to challenge the constitutionality of any law in the Constitutional Court. 

What will the first court now decide?

As the case resumes in the First Hall of the Civil Court in its constitutional jurisdiction, Mr Justice Chetcuti has to decide whether to refer Repubblika’s challenge to the ECJ for its elucidation.

Prior to the appeal, he had decreed that his decision would be “inspired” by judgment of the ECJ in a then-ongoing case against Poland. The ECJ has since delivered the Polish judgment which, according to European constitutional experts, has put the Maltese case within the sphere of EU law requirements on judicial independence. 

Matteo Bonelli, a researcher in European law at the University of Milan, told Times of Malta the judgment shows “there is a potential EU law dimension in the Maltese case.”

In its judgment, the ECJ said that “effective judicial protection” involves the right to fair trial and the right to effective remedy (from injustices or abuse, including by courts themselves). It then linked these “cardinal” rights to judicial impartiality as conveyed through the system of judicial appointments, among other things.

The ECJ said that “guarantees of independence and impartiality require rules, particularly as regards the composition of the body [court] and the appointment”, among others, “that are such as to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it”.

The contours of the Polish judgment, as well as last Friday’s judgment that grafted effective legal protection onto Article 116 of Malta’s Constitution, makes it more likely that Mr Justice Chetcuti will refer the dispute to the ECJ for its enunciation under the preliminary reference procedure.

What is the preliminary reference procedure?

EU law takes primacy over national law.

The preliminary reference procedure is designed as a form of “dialogue” between the ECJ and national courts as a way to clarify any national law that jars with EU law. If a domestic court is uncertain about whether an aspect of national law complies with EU law, it can discretionally make a preliminary reference for the ECJ’s interpretation.

In this case, Repubblika posited that the law on judicial appointments of 2016 is incompatible with Article 19(1) TEU. 

In the preliminary reference procedure, the ECJ usually limits itself to making broad elucidations.

Monica Claes, an expert in EU constitutionalism at Holland’s Maastricht University, told Times of Malta that the ECJ would “give the judge [Mr Justice Chetcuti] the tools to decide whether the entire system of appointments is in accordance with the (yet to be defined) EU requirement of judicial independence”.

She elaborated: “It will in any case say that it cannot decide the matter: that will be for the referring court. But it has to explain what European Union law requires in terms of judicial independence.”

This prospect has piqued the interest of European constitutional scholars who see the Malta case as an opportunity for the ECJ to expand its jurisdiction on judicial appointments and independence.

How will this interact with Repubblika’s complaint to the EU Commission?

Last week, Repubblika made a parallel complaint to the EU Commission.

This will enable the Commission to engage with the government more directly on changing the system of judicial appointments and dismissals, particularly after last Friday’s court judgment.

On the other hand, the EU would probably prefer the issue to be settled in Malta’s national courts. For this reason it may refrain from making any overt requests – in the form of a ‘reasoned opinion’ – that might lead to legal proceedings against Malta at the ECJ. 

Why is this a ‘constitutional mess’?

If the six appointments of last April are revoked, as Repubblika has requested, it would nullify all their judgments and decrees.

This might have a domino effect – of lawsuits challenging further judgments, depending on how strongly Malta’s judicial appointments system is found to jar with EU law – which could lead to at least partial meltdown of the court system.

The consequences could be as dramatic as criminals walking out of prison free.

In the wake of last Friday’s judgment, justice experts who spoke to Times of Malta expect the government to move faster to revamp the system of appointments, partly in a bid to take the wind out of Repubblika’s lawsuit.

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