The majority of judges and magistrates in the judiciary have a personal history that is intimately, actively and explicitly intertwined with the Labour Party, president of NGO Repubblika Vicki Ann Cremona writes in a Times of Malta Talking Point.

Martin Scicluna’s latest contribution – ‘A demoralised judiciary’ – does not campaign on behalf of judges. He campaigns for the government that seeks to control them and controls him.

Repubblika filed a constitutional case challenging the democratic basis for the Prime Minister’s unfettered powers of appointing judges and magistrates after the government ignored the advice of the Venice Commission to change the system.

The last wave of appointments changed 13 per cent of the judiciary using a system that the world’s foremost legal experts on constitutional matters said fell short of what is expected in a modern democracy.

Appointment system challenged

The government failed in its duty to protect our democracy. Repubblika, as a civil society organisation concerned with the rule of law, will not fail in its duty of campaigning in any way available to it for our democracy to be protected.

This is exactly why Repubblika took the government to court. The only thing the government and its mouthpieces have to fear is the courts finding we are right.

The argument that we already had reforms to judicial appointments in 2016 is deceitful.

Our own Court of Appeal found in a recent ruling that the power of appointment of judges and magistrates before and after the 2016 so-called reforms lies, without restraint, exclusively in the hands of the Prime Minister.

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The argument that the “European Commission approved our system” is both fallacious and deceitful. Fallacious because the European Commission examined our judicial system almost 20 years ago. What was OK then is not OK now.

It is also deceitful because that so-called approval was qualified. The final report of the screening of our laws before EU accession says that “consideration could, however, be given to the possibility of further improving the objectivity of the appointment procedure, which, in the current situation, is controlled by political bodies.”

60% of all judges and magistrates sitting in judgement of us have a personal history that is intimately, actively and explicitly intertwined with the Labour Party

Back then, it was a yellow flag. Now it’s definitely red.

The consideration recommended by the EU Commission 20 years ago never happened. That is bad. Because a power that risked being abused before 2013 has been brutally exploited since.

Majority of judiciary linked to Labour

Joseph Muscat has appointed to the bench or promoted within it a former Labour MP, a former consultant that sat at Cabinet meetings, a former Labour international secretary, the husband of a Labour MEP, three ex-Labour Party election candidates, a Labour deputy leader’s daughter, two former law office partners of two former Labour deputy leaders, a veteran Labour mayor and a daughter and a sister of Labour ministers.

That forms the present massive majority of the judiciary.

Sixty per cent of all judges and magistrates sitting in judgement of us have a personal history that is intimately, actively and explicitly intertwined with the Labour Party.

Individually, some of them – even most of them – may be perfectly capable of forgetting their past and sit in fair judgement. But this overwhelming mobilisation of partisan appointees can only mean one thing: that citizens in dispute with the government or with individuals from the Labour Party rightly or wrongly perceive our courts as partisan and not a fair place from which to seek and get justice. Certain decisions by Judge Giovanni Grixti, Judge Consuelo Scerri Herrera, Judge Antonio Mizzi and Judge Joanne Vella Cuschieri are inexplicable unless account is taken of their partisan affiliations.

But the real problem lies much deeper. Since 2013, the government has used its power to promote judges to secure the interests of the individuals who run it.

The promotion of Judge Anthony Vella helped the government’s efforts to slow down and drag the investigation into Daphne Caruana Galizia’s assassination.

Even the Parliamentary Assembly of the Council of Europe noted in a report it adopted that the promotion of Judge Aaron Bugeja by Muscat came almost immediately after the then magistrate – Bugeja – had just ruled that there was no evidence that the Prime Minister and his wife were involved in a major corruption investigation.

While still in office, judges nearing retirement live in fear of being forgotten at home by a government against whom they have taken decisions while their more accommodating colleagues are rewarded.

Powers to punish and reward

Judge Lino Farrugia Sacco, whose son is a Labour Party candidate, was spared impeachment by Muscat. And after dodging that bullet he was appointed chief administrator of public property.

When this happens – when the government exercises its powers of appointment to punish judges that decide against it and reward judges that don’t; or even when the threat of punishment or reward is dangled in front of them – our judiciary is not free to decide.

Scicluna says Repubblika acts this way because it is “against Adrian Delia”. He is only slightly, but more than sufficiently, off the mark. It is correct to say that we would expect the Opposition leader to be campaigning against this hostile takeover of our judiciary. But we will not wait for him to snap out of his stupor.

We will do everything in our power, including going to court, to protect everybody’s right to an independent justice system that protects the weakest, most vulnerable members of our society against the wrath and power of the government.

If it’s elitist to work to protect the rights of the weakest among us against the overwhelming weight and power of an authoritarian government, this is a “minority cult” we are proud to belong to. Incidentally, why does he call us a cult?

Did he mean coven? Or sect? Is it now a perversion to challenge an unconstitutional law in court?

Scicluna should do the right thing, as for that matter should the anonymous judge, and insist for reform right here, right now.

If the government continues to ignore us with empty promises, then we have no choice but to challenge the courts to snap out of their own slumber and be the ones to do the right thing.