Enough time has elapsed in order to evaluate as objectively as possible the recent amendments to the appointment and removal procedure of members of the judiciary in Malta.
Prior to 2002, the selection process for such appointments was exclusively in the hands of the executive. Following the scathing report of the Venice Commission, and with the concurrence of the opposition, the required two-thirds majority was achieved so that, through a constitutional amendment, the executive today no longer has any say in the choice of the members of the judiciary.
An Appointments Committee, in which the members of the judiciary enjoy a majority of members, selects, after a call for applications, three candidates to fill any vacancy which occurs. The final choice is then made by the President of Malta acting according to his deliberate judgment and not, as is usually the case, on the advice of the government of the day.
This was a positive and much-needed development but it is not without its flaws. Why does the committee propose three candidates for the president to choose one? Why put the head of state in an embarrassing position of choosing one and putting aside two of the candidates when the Appointments Committee is better prepared and possesses better information and expertise on the selection of judges and magistrates?
And to make the president’s position even more uncomfortable, in choosing his preferred candidate, the president has to publish the names of the candidates who are not selected! One shall see how this system will work in the forthcoming days. Hopefully, the members of the judiciary will steer away from always proposing one of their own for promotion on the bench and those who deserve it should not be denied such promotion.
Of a more serious nature are the flaws relating to the removal of members of the judiciary. Before, the removal procedure was split into two stages. Any MP could submit a motion stating the serious reasons why a judge should be removed from office. The motion then used to be confidentially sent to the Commission for the Administration of Justice within which the judiciary has five out of nine voting members.
If the commission ruled that there was no prima facie case, the proceedings stopped there. Otherwise, the green light was given for the motion to revert to parliament, which, by a two-thirds majority of all its members, could request the president to remove a judge on proved incapacity or misbehaviour.
The new removal procedure, through a 2016 amendment confirmed in 2020, can only be initiated by the government of the day, namely the minister for justice and the head of the judiciary, the chief justice. While, before, any of the 67 MPs, including those from the opposition, could trigger off the procedure, the opposition has now been excluded from the entire process. Control of the commencement of the removal procedure is now in the hands of the government of the day and the chief justice.
Secondly, if these two ‘gatekeepers’ of the removal proceedings give their consent to start the proceedings, the matter is debated in the aforementioned commission, which, by a simple majority, can decide to remove the judge who would have a right of appeal before the Constitutional Court. Since the chief justice is ex officio a member of the commission, he would not be able to preside over the court, so that , in such an important matter, another judge would preside over the hearing of such an appeal.
We should not blindly accept any recommendation by any group of foreign jurists- Tonio Borg
This change in the procedure – in my opinion, for the worse – was due to slavish obedience to a recommendation by the Venice Commission that the ‘political’ organ, namely parliament, should not be involved in any way – not even by a two-thirds majority – in the removal of a member of the judiciary, which is why this has landed us in the current legal mess.
The Venice Commission seems to have been oblivious to the fact that, in at least two Council of Europe states, namely, the United Kingdom and Switzerland, the legislature is still involved in the ultimate removal procedure, so, incidentally, is the Senate of the United States in the impeachment of a federal judge. Why did the Venice Commission pick on Malta in this matter? Indeed, in the United Kingdom, a judge can be removed from office by a simple majority of both houses of the legislature.
I am not stating this out of any patriotic sentiment but we should be very careful before blindly accepting any recommendation by any group of foreign jurists. Certainly, the Venice Commission played an important role in exerting pressure for things to change but not all its recommendations are infallible. Nor should we shy away from refusing to accept recommendations that are unfair or unreasonable in a Maltese context.
To make matters even worse, when the method of removal of holders of the offices of the attorney general and the newly established state advocate was included in the Constitution, the method of removal chosen was that applicable to judges prior to 2020! Why is the intervention of the ‘political organ’ unacceptable in the case of removal of judges but not in the removal from office of the holders of these two important constitutional offices?
These comments and observations are only being brought forward to rationalise the 2020 amendments in the future, remove the flaws that still exist and ensure an appointment and removal procedure which is fair and reasonable.
Tonio Borg is a former European Commissioner.