The well-received appointment of Mark Chetcuti as the new chief justice gives an unmistakable signal to the judiciary.
Judge Chetcuti was nominated in a motion in parliament jointly presented by the prime minister and leader of the opposition last Wednesday. He commands respect in court for his integrity and independent mindedness.
In the past year, he has not shied from taking innovative decisions, eminently among them the revocation of the permits for the DB skyscraper in Pembroke and minister Ian Borg’s swimming pool, as well as his reference of Repubblika’s case on judicial independence to the European Court of Justice.
The signal to the judiciary is that having to take decisions that upset the government or powerful figures may actually stand one in good stead when it comes to promotion. Parliament has, by this appointment, shown that it values the independence of the judiciary.
This is a crucial point of reference, or departure, as the country embarks on a reform to the judicial appointments system and the method of sanction and removal of the judiciary.
The ECJ, which has still to pass judgment on the questions that Chetcuti referred to it, will take note.
The Luxembourg court is now likely to weave a judgment that will take into consideration the reform in Malta while broadly laying down new standards on judicial appointments within the EU.
It is into this historical moment that the 62-year-old Chetcuti has been thrust. In his three years at the helm, he will have to lead the change in mindset that will be precipitated by the reform in the system of appointments.
It is a change that will bolster judicial independence, making the judiciary more self-regulatory. In this sense, Chetcuti will be able to lead by example and also be a firewall, wherever needed, between the judiciary and the executive.
In last Wednesday’s motion, the parties announced that a new system of appointments will be implemented and that the next chief justice – in three years’ time – will also be appointed under the new system. Although no details on the new mechanism were given, the motion said the new system would be subject to “approval” by the Venice Commission.
We can infer what the new system will be because the Venice Commission – the Council of Europe organ for furthering ‘democracy through law’ – has already made its recommendations.
It expressed itself in favour of a system in which judicial candidates would be assessed and ranked after issuing calls for application, and for the assessment to be carried out by an independent body with at least half its members drawn from the judiciary.
This would be the right balance for Malta’s situation: a body with half its members drawn from the judiciary and the rest hailing from key sectors in the democratic structure.
Yet, the new system would only inspire confidence and improve the administration of justice more holistically if it was to be accompanied by greater transparency.
To this end, the selection and removal of the judiciary has to be as transparent as possible. Concurrent reform is needed in the Commission for the Administration of Justice, which at present operates in complete secrecy.
This commission, or whatever supersedes it, has to become a body that transparently raises judicial standards, hones efficiency and improves the administration of justice – and carries out its tasks publicly.
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