Updated at 8.11pm with PN statement

The fact that judges and magistrates have been appointed at the discretion of the Prime Minister in the past does not mean that such method of appointment is satisfactory in present times, the Constitutional Court declared on Friday.

Deciding upon a case instituted by civil society NGO Repubblika which is challenging the current system of judicial appointments, the court said: “The law is not static and, even without a change in statutory law, what was good and valid in the past did not necessarily remain so today. In other words, the fact that judges and magistrates were always appointed in such manner in the past… did not mean that such method of appointment was satisfactory today.”

Repubblika had started court proceedings against the Prime Minister and the Justice Minister, seeking to nullify judicial appointments until the government implemented recommendations by the Venice Commission on the rule of law and the independence of the judiciary.

Through its action, it is seeking to nullify the appointment of six new members of the judiciary, saying no members should have been added to the bench until a revised system of appointments was in place.

The First Hall, Civil Court, presided over by Mr Justice Mark Chetcuti, had declared in May that Repubblika did not have juridical interest in the issue under Maltese law, but postponed a decision about a reference to the European Court, saying it would rule on that matter at a later stage.

A week later, that same court upheld both parties’ request to appeal, declaring that such a “sensitive” issue merited direction from the Constitutional Court and emphasising the need for such appeals to be handled “with urgency”.

On Friday, judgment was delivered in those preliminary appeals.

While rejecting the request for an interim measure, pointing out that the law provided for such measures by way of precautionary warrants, the court did not completely cast aside Repubblika’s concerns, delving into the merits of the appeal “since other members of the judiciary could still be appointed pending final outcome of the case”.

The principle of living instrument was to be used to be applied with “discretion and moderation” so as to avoid legislative functions being usurped by the judiciary, resulting in a “democratic deficit”, the court observed, noting that the current system of judicial appointments had worked well for years and one could not suddenly find fault with it to the extent of calling for such “drastic measure” as a prohibitory injunction.

As for the parallels to the case of Poland, the court observed that the Polish case had unfolded against a totally different scenario and that an interim measure had been granted by the European Court in that case so as to block the Polish government from firing judges.

“That was certainly a drastic change that found no reflection” in Repubblika’s case, the court said, concluding that the request for the interim measure could not be upheld.

In a separate judgment delivered on the dual appeals filed by the civil society group and the Attorney General, the Court declared that the Justice Minister was non-suited, stating that his presence at the swearing-in ceremony “was not relevant in determining his standing in the proceedings”.

The Court also upheld the conclusion of the first court which had said that Repubblika’s action was not one based on fundamental rights but a popular action whereby the applicant’s had a right to call upon Maltese courts to attack the validity of the law relating to judicial appointments. 

There was no need for Repubblika to prove its juridical interest, said the Court, declaring that the case had a sound legal basis under article 116 of the Constitution.

The proceedings will now continue before the First Hall, Civil Court.

Lawyers Simon Busuttil and Jason Azzopardi were counsel to Repubblika. Peter Grech and Victoria Buttigieg represented the government.

The Court was presided over by Chief Justice Joseph Azzopardi together with Mr Justices Giannino Caruana Demajo and Noel Cuschieri.

Implement Venice Commission recommendations, PN

In a statement late on Friday, Opposition leader Adrian Delia said the government's obstinance was putting the entire judiciary at risk. 

He called on the government to implement the Venice Commission's recommendations on the rule of law, without delay. 

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