The government has decided to overrule the objection raised by civil society group Repubblika, which filed an application in court asking it to order a stop to any further appointments to the judiciary before the reforms suggested by the Venice Commission are made.
The matter has now to take its course and judicial procedure must be followed. But should it have reached this stage?
When doubts emerge on the appointment of judges and magistrates it means the system must be given due attention because the independence of the judiciary is paramount. The issue was brought to the fore by none other than the Venice Commission the Council of Europe’s advisory body of independent legal experts on Constitution matters.
In a report drawn up after a visit to Malta, the Venice Commission concluded this about judicial appointments: “In conclusion, the constitutional amendments [of] 2016, which introduced the JAC [Judicial Appointments Committee], were a step in the right direction, but fall short of ensuring judicial independence. Further steps are required.
“The principle of independence of the judiciary requires that the selection of judges and magistrates be made upon merit and any undue political influence should be excluded. The Prime Minister should not have the power to influence the appointment of justices and judges-magistrates. This would open the door to potential political influence, which is not compatible with modern notions of independence of the judiciary.
“In order to improve the system of judicial appointments, the Venice Commission therefore recommends:
“1. Judicial vacancies should be published and candidates from inside and from outside the judiciary should apply to the JAC for a specific vacancy.
“2. The JAC should have a composition of at least half of judges elected by their peers from all levels of the judiciary.
“3. The JAC should rank the candidates, upon merit on pre-existing, clear and transparent criteria for appointment, taking also into account the goal of achieving a gender balance.
“4. The JAC should propose a candidate or candidates directly to the President of Malta for appointment. Its proposals should be binding on the President.
“5. There should be no exception from this procedure for the appointment of the Chief Justice.”
The European legal experts were very specific in their thoughts and laid down a clear ‘programme’, which the government could have followed if, as it said, it “is in general agreement with the bulk of the Venice Commission’s proposals and... intends to implement them in the main”. Its decision, last week, to appoint three judges and three magistrates, regretfully, does not demonstrate much goodwill.
It would been different had the government been faced with an emergency and had no option but to fill a vacancy. However, its latest move has the hallmarks of a defiant administration wanting to show, once again, it is in power and, therefore, wanting to calls all the shots.
True, the changes proposed by the Venice Commission need changes to the constitution, laws and procedures but since the Opposition is in complete agreement with what has been proposed the road ahead should be smooth.
The government should not waste any time in sitting down with the Opposition to draft a Bill that can be debated and approved once Parliament resumes after the Easter holidays.
This is a Times of Malta print editorial
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