When the President swore in the three new judges and three magistrates last week, he urged the government to implement the recommendations of the Venice Commission as soon as possible. On my reading, George Vella was saying he wouldn’t like to have to swear in another lot of judicial appointees chosen under the current flawed system. He said it publicly so as to gain some traction behind the scenes the next time round.
I’m not sure he could have done more. Suppose, informally, he questioned the rush. He might well have been faced by official figures, taken from the EU’s Justice Scoreboard, showing that Malta has one of the lowest proportions of members of the judiciary. No President can second-guess the government on policy.
That still leaves us with six appointees, four of whom have a partisan connection that is far too close than is good for the reputation of the judiciary. A new judge can be found on You Tube saying she’s dyed-in-the-wool Labour. One magistrate is the daughter-in-law of Joseph Muscat’s lawyer; another was the Deputy Prime Minister’s person of trust; a third is the son of the Labour-appointed chair of the Environment and Resources Authority.
None of this is good. But neither is it as bad as some critics say. It is not comparable to the situations in Turkey, Hungary and Poland.
In Turkey’s turn to authoritarianism, the courts have locked up government critics. The Kafka-esque prosecution of journalists, civil servants and academics has come under the cover of state-of-emergency anti-terrorism laws. Lack of judicial independence has not, in itself, been enough.
The Maltese case is also unlike that of the EU’s biggest rule of law worries: Hungary and Poland. They are registering a slide in actual legislation passed, either by eroding judicial oversight over fundamental rights or by threatening to sanction judges whose rulings the executive does not approve of.
The Maltese case is seeing actual improvements in method (as well as in some aspects of the administration of justice) but, simultaneously, violations of informal standards. The EU’s Justice Scoreboard accordingly shows mixed results. Malta doesn’t occupy a bad position in the rankings when compared with other EU member states, but the internal dynamics of its scores should give rise to concern.
The general public’s perception of judicial independence (according to Eurobarometer) has improved steadily over the last four years. In comparison with the rest of the member states, Malta is 14th, the middle position.
Lack of independence is blamed first on political interference. The government’s choices show it doesn’t care.
The perception of businesses is even less flattering. Malta’s position is in 12th place but last year the perception of judicial independence took a big hit. In 2019, some confidence has recovered but not yet reached the levels of 2016 (highest) or 2017. Once more, political interference is blamed first.
That’s the score according to Eurobarometer data. The World Economic Forum figures are more disturbing. Malta’s position in the EU 28 is, at 18th, in the bottom half. Moreover, they show a gradual decline from 2010-2012. (Hungary and Poland feature at the tail-end of the justice scoreboard, where one would expect.)
Three conclusions follow. First, there is no straight line leading from these appointments to the current state of Hungary and Poland. The EU’s grave concern about these member states arises out of laws passed, not simply judicial appointments.
Second, it’s possible that the method of appointment will make these members of the Bench more open to take the State’s point of view when deciding cases. But in this they will be similar to the vast majority of their peers and predecessors, as the retired judge Giovanni Bonello has shown in his studies of human rights cases that made their way to Strasbourg.
Third, the real impact of these appointments will be to reduce the status and prestige of the judiciary as a whole. The method of appointment is officially recognised as inferior. Psychologically, last impressions count, and the last two dozen or so appointments to the Bench have almost all had a strong partisan background. Even those without any such background will be affected.
One possible consequence will be to continue to exacerbate the growing perception of lack of judicial independence among businesses. The fact that it’s registered by the World Economic Forum is not good news for inward investment.
The more serious consequence will be on our ability to think of ourselves as a civic unity. The perception of the integrity, independence and impartiality of the law is a necessary ingredient. We are one because we are identical when facing justice. If the face of justice is fractured, then so will we be as a people.