The decision by the government to plough ahead with six judicial appointments came right after the First Hall of the Civil Court, in its constitutional jurisdiction, had set an urgent hearing in a legal challenge to the appointments mechanism. This was made on the basis of failure to guarantee judicial independence. The government’s move betrayed its dismissive attitude to the justice system.
The government has long taken Malta’s constitutional courts for granted. This attitude has been encouraged by the tendency of these courts to err on the side of government, leading to an extraordinary statistic: nine in 10 of the highest court’s judgments challenged at the European Court of Human Rights (ECtHR) have been overturned.
One possible reason for this state of play is that governments have generally been partial in their selection of members of the judiciary, something that this government has taken to a new level of brazenness. In the past six years it has appointed or promoted half the members of the judiciary and the overwhelming majority were drawn from party lines. Furthermore, it takes audacity to bite the proverbial hand that feeds you: the Prime Minister has untrammelled discretion to promote magistrates to judges and select the Chief Justice from among sitting judges.
Constitutional provisions hold that members of the judiciary can be investigated only on written complaints by the Minister for Justice or the Chief Justice, so any complaint has to pass through these two.
In this general scenario, judicial independence cannot be ensured, so the right to fair trial cannot be guaranteed – a breach of one of the most sacrosanct principles of the European Convention of Human Rights. That puts the mechanism of judicial appointments and promotions at odds with human rights provisions.
This point was given immense weight by the Council of Europe’s Venice Commission last December. The Commission’s reports carry judicial authoritativeness because they are often cited in judgments by the ECtHR as well as by judicial and political organs of the EU.
The constitutional suit filed by Repubblika takes the Venice Commission report as its point of departure: the latest appointments are being challenged because they happened in a judicial reckoning changed by the report. Repubblika has also invoked the EU treaty, the Maltese Constitution and the Poland factor, that is, the decision by the European Court of Justice to put an interim stay on a fresh complement of appointments to the supreme court.
The government has largely attacked the lawsuit on procedural and technical points, and with the predictable argument – dismissed in case law in the European sphere – that the applicants have no direct juridical claim. The government is also opposing the request to refer the case to the European Court of Justice for interim measures (Maltese courts make the lowest number of references to the ECJ).
It is worth remembering that in 2013, in consultations leading to the publication of the government-commissioned Bonello Commission report, the Maltese judiciary itself had requested that the majority of members of the then-proposed judicial appointments authority should hail from the judiciary.
But the government has been reluctant to cede its power in making the appointments. Its only gesture was to set up the Judicial Appointments Committee in 2016 which, as the Venice Commission put it, “falls short of ensuring judicial independence”. The government has argued that the small size of the judiciary means appointments cannot be entirely left to the judiciary itself, and that having the Prime Minister make choices ensures gender balance on the bench.
Although the government has since said it will implement the Venice Commission recommendations, the latest appointments amounted to a complement of more than a tenth of the judiciary in one fell swoop.
The mantle for upholding constitutional provisions on judicial impartiality and independence, seen as being impinged by the mechanism of judicial appointments, has therefore passed to the constitutional courts themselves.
The prospect of judgments by the latest appointees being challenged in the ECtHR makes all the more compelling the case for interim measures: suspending the latest appointments until the constitutional court can consider the merits of the case with thorough scrutiny. Any decisions in this regard, which some justice experts feel are warranted by constitutional provisions, would signify the constitutional courts’ coming of age.
It’s bad enough that Malta is the odd one out among the world’s democracies that laws deemed unconstitutional are not automatically revoked upon the constitutional court’s judgment. Instead, it has to inform Parliament, which may at times decide against making amendments to laws judged to be unconstitutional or drag its feet on making the amendments.
It is essential for the health of our democracy, which is seriously endangered, that the constitutional courts begin to wield authority more decisively to uphold a higher constitutional order – that is precisely what the constitutional court is being asked to do by the Repubblika lawsuit.
This is a Times of Malta print editorial
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