Malta is in the “worst constitutional mess” that it has faced since Independence, the Dean of the University of Malta’s Faculty of Laws, Kevin Aquilina, has told The Sunday Times of Malta in reaction to last Thursday’s judicial appointments and the lawsuit that challenged the selection system.

It is a sentiment echoed by other legal experts, who also raised the spectre of the appointees’ judgments being tested in the future on human rights grounds.

Thursday’s rushed judicial appointments fly in the face of a report by the Council of Europe’s Venice Commission that says the mechanism of appointments “falls short of ensuring judicial independence”. 

The government continues to defy international and European human rights instruments, the case law of the European Court of Human Rights and the various bodies which pen negative reports

Civil society organisation Repubblika latched onto the report by the world’s most eminent constitutional body to mount the unprecedented challenge in the constitutional court. In a day of legal drama, the urgent lawsuit reached the constitutional court at 12.30pm on Thursday, which led to Mr Justice Mark Chetcuti giving the Prime Minister 24 hours to reply and appointing an urgent hearing for Monday morning.

Ninety minutes later another urgent application requested a stay of the appointments but this was rejected by the judge on the basis that the “prejudice [caused by the appointments] is not irremediable”.

This allowed the appointments to go ahead an hour later at the Palace in Valletta just down the road from the law courts.  

But according to Prof. Aquilina, “Prudence should have dictated that the judicial appointments should not have been rushed through bearing in mind that there were a number of factors which militated against such appointments.”

Aside from the constitutional challenge itself, he cites various factors: failure to revamp the judicial selection mechanism as recommended by the Venice Commission and Bonello Commission; the fact that the current mechanism has been deemed flawed within the context of Strasbourg case law and expert reports; and the cascade of other recent reports “in the same vein as the Venice Commission report that there is a serious rule of law problem in Malta”.

Yet another factor is that the Justice Minister moved first readings of bills inspired by aspects of the Venice Commission report without publishing the bills in the Government Gazette.

“By its inaction, the Maltese government continues to defy these international and European human rights instruments, the case law of the European Court of Human Rights as well as the various bodies which are, and will continue, to pen negative reports,” Prof. Aquilina said.

“Malta is currently being disgraced all over the world through such governmental conduct, reaping serious reputational harm to the country.”

The dean sat on the Bonello Commission in 2013, which advised the government on comprehensive reform of the justice system, including judicial appointments. But he has since become a strident critic of the government for ignoring its own commissioned report and instead ushering amendments on judicial appointments in 2016 which he says are in breach of human rights.

He blames the government for the current fix, saying it has “acted, and continues to act, in bad faith”.

He is also critical of the judge’s decision to reject the request for a stay of last Thursday’s judicial appointments. He points out that although he “understands” that the court “formulated” its decision on a specific article in law, 873(3) of the COCP, “the issue here was not of a purely civil law nature but relates to a more fundamental matter – a constitutional human rights law issue”.

“If the judicial appointments were to take place, as they have now done, that would have been another breach of Article 39 of the Constitution and Article 6 of the European Convention on Human Rights,” he elaborates. “I say ‘would have been’ not ‘could have been’ because there is case law of the European Court of Human Rights (ECtHR) to this effect.

“The irremediable harm,” he adds, referring to the judge’s take that the appointments do not constitute ‘irremediable’ prejudice, “lies in the fact that the Constitution is being breached, the European Convention on Human Rights is being breached, and any person who has a pending court case before a judge or magistrate can attack the validity of the decree or decision or judgment on the basis that the appointment made by the government runs counter to the case law of the ECtHR in relation to the impartiality of a judge or magistrate. For the Strasbourg Court all the judiciary appointed since 2013 (and before) lack impartiality.”

Although the judiciary has long been appointed at the choice and discretion of the Prime Minister, the recent evolutions of case law in the ECtHR as well as publication of the Bonello Commission report in 2013, and more significantly the Venice Commission report last December, have all provided points of departure to implement changes to the mechanism of judicial appointments.

The significance of Venice Commission reports is that they are often cited in judgments of the ECtHR. And Repubblika’s lawyers Simon Busuttil and Jason Azzopardi are arguing that the Venice Commission report created a point of reference prior to the latest appointments – an argument that has traction in constitutional level courts, according to analysts.

A European expert in human rights issues who has worked at the ECtHR told The Sunday Times of Malta on condition of anonymity that he cannot foresee the Reppublika constitutional suit progressing directly to the ECtHR because of “procedural issues”. He added: “But the case of judicial appointments being in breach of the right to fair trial is a valid legal argument in a domestic constitutional court, where this is playing out.”

Pointing out that any appointments since 2013 do not comply with Strasbourg case law, Prof. Aquilina adds that there is “no guarantee” that the constitutional court will follow ECtHR judgments on the matter. The constitutional court does not have a good track record, he says: nine out of 10 of constitutional court cases taken to the ECtHR are overturned on human rights violations.

“The government’s lawyer, the Attorney General, will typically raise all possible conceivable dilatory pleas to delay and cause procrastination on a decision being taken in this case. The courts may embrace the idea of deciding the case on a procedural point so that the substantive points are never decided as they would end up opening a pandora’s box.

For the Strasbourg Court all the judiciary appointed since 2013 lack impartiality

“The outcome would be that the government wins the case and injustice is meted out. It would have to be the ECtHR to eventually be called upon to make things right. By that time the only solution left would be to replace all the judiciary and to rewrite the constitutional provisions on judicial appointment.”

Will the appointees be suspended? 

In the context of the constitutional court considering a request to nullify last Thursday’s appointments, an immediate complication is whether the appointees shall serve in the interim.

A senior source in the legal system who did not wish to be named said: “If the Chief Justice allows them to serve, that would amount to putting pressure on the constitutional court to decide to allow the appointments to stay.”

Asked to comment on this point, and whether he would be withholding any work to the new appointees until the constitutional case decides on the matter, the Chief Justice said that in view of “pending lawsuit I cannot answer your question”.

The president of the Chamber of Commerce, Louis de Gabriele, also declined to comment on these questions for the same reason.

Prof. Aquilina said that “the Chief Justice has no right to suspend them for it is not the fault of the appointees if the government has decided to rush through their appointments”. He added that “once appointed they [the appointees] have to carry out the duties of office”.

Mr Justice Chetcuti’s decision not to put a stay on the appointments last Thursday, on the rationale that the “prejudice” from the appointments is not “irremediable”, implies that the court may decide to suspend or nullify the appointments.

The lawsuit itself requests interim measures, primary among them the possible suspension of the appointments until final judgment is delivered.

The constitutional lawsuit in brief

The unprecedented constitutional suit filed by Repubblika posits that the judicial appointments are in breach of right-to-fair-trial provisions of the European Convention on Human Rights, right to effective remedy and fair trial of the EU’s fundamental charter of rights, as well as the Maltese Constitution – independence and impartiality of courts, and the first article, “respect for the fundamental rights and freedoms of the individual”. Another point is that the appointments additionally flout the Treaty of the European Union.

The application quotes extensively from last December’s report on Malta by the Venice Commission – this is the point of departure for the lawsuit, and its strongest anchor – and then additionally invokes the EU’s treaty and charter of fundamental rights of EU citizens.

Much is made on the precedent set by the European Court of Justice which imposed interim measures on Poland in a case also involving the judiciary, an exposition that raises the possibility that this may be a viable waypoint for Reppublika’s case.

In its response, the government draws the battle lines by attacking the lawsuit on various technical and procedural points, including the argument – dismissed in the past by the ECtHR – that the parties have no direct juridical claim to breaches of the right to fair hearing. An argument is also put forward that the Venice Commission makes recommendations in the context of an ‘opinion’, and that these are non-binding.

The applicants, the Justice Minister argues, are “absurd” in their requests, which would amount to “paralysing the courts and certainly this is not in the better interest of the administration of justice”.

The lawsuit’s confluence of requests seems designed to annul last Thursday’s judicial appointments and ensure that any appointments for the duration of the case, as well as all future appointments, can only be made under a new system devised on the recommendations of the Venice Commission.