Civil society group Repubblika on Monday provided details on why they wanted their case challenging the current system of judicial appointments to be referred to the European Court. 

In a note filed before Mr Justice Mark Chetcuti, Repubblika said it wanted the European Court to determine whether the current system of judicial appointments in terms of the Maltese Constitution was in breach of the European Treaty and/or Charter of Fundamental Rights.

It explained that the current system gave the Prime Minister “arbitrary discretion,” was not subject to “clear and objective rules or criteria” and was lacking any need for explanation or motivation nor subject to any judicial authority. 

The note was filed after Mr Justice Chetcuti, presiding over the First Hall of the Civil Court, last week instructed Repubblika to substantiate its request for a reference to the European Court. It further requested that the ECJ adopts the accelerated procedure, given the urgency of the matter.

Repubblika also said if the ECJ ruled that there was a breach, it should also rule on whether a Maltese court ought to pronounce the current system as “illegal and invalid,” likewise declaring as “invalid and ineffective” all appointments made “from the date of this case onwards”. 

Moreover, it said that if the current system was found to breach European law, the ECJ should also decide whether a Maltese Court should provide for “interim measures” so as to immediately block further appointments pending a final decision on the merits. 

In its note, Repubblika highlighted parallels to the Polish scenario, where the President was allowed the discretion of extending the term in office of judges, otherwise finding themselves out of office with the lowering of the retirement age to 65. 

The Maltese Prime Minister’s discretion was “wider, less subject to review and more abusive,” said the NGO, pointing out that he appointed magistrates, judges, including the Chief Justice and also nominated retired members of the judiciary to public boards.

The Judicial Appointments Committee merely expressed an opinion and final discretion rested with the Prime Minister, the note pointed out, adding that in 2016, the Government had rejected a Private Member’s Bill seeking to change that unfettered discretion. 

The 2016 amendments had been “unanimously” voted in Parliament only as a “gesture of goodwill” by the Opposition, Repubblika claimed. 

The appointments effected since 2013 had upset the balanced composition of the judicature, clearly manifesting bad faith on the part of the Prime Minister who ignored the recommendations of the Venice Commission. The resulting situation, as described by a former dean of the Faculty of Laws, was “a constitutional mess,” Repubblika claimed. 

The Attorney General has until October 28 to reply. The Court is then expected to decree upon the matter after the next hearing, scheduled for October 30.

Lawyers Simon Busuttil, Jason Azzopardi and Karol Aquilina signed the note.

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