New judicial appointments: ban on past political affiliation stirs hornet’s nest

Updated to include a statement by the Chamber of Advocates.

Dozens of seasoned lawyers who aspire to become Judges are up in arms after learning they are excluded from applying for judicial posts according to a new mechanism recently approved by parliament that bans them on the basis of political party membership.

While many consider the new mechanism for appointments to the judiciary as a great improvement over the old system, a set of new guidelines drawn up by the Judicial Appointments Committee last November excluded lawyers from applying if they held any form of political affiliation in the preceding 12 months, even if simple Party membership (tessera).

They are banned from applying for the posts available for four new Judges of the Superior Courts, which closes on Friday. While admitting the new regulations are a step forward, lawyers said they should have been made aware of this, or at least it should not have been imposed retroactively.

The Judicial Appointments Committee is presided by the Chief Justice and includes two other Judges chosen by their peers, a magistrate representing her colleagues, the Ombudsman and the President of the Chamber of Advocates.

The Shift is informed that a number of lawyers who were toying with the idea of applying for the post have now been excluded. Despite voicing their concerns in an effort to find a temporary solution, they complained that neither the Justice Minister nor the Judicial Appointments Committee have listened.

“This is really unfair. We would have at least expected to be consulted on these new rules before they were published by stealth,” a group of senior lawyers told The Shift. “We are now being discriminated against without any prior notice.”

While many lawyers understand, and agree, that political affiliation and a judicial appointment are conflicting, they argued that this new ‘rule’ should have been put in place and declared in time and long before the application process for the new appointments was set in motion.

Following a review by the Venice Commission, which slammed the appointment of Judges and magistrates through the sole discretion of the Prime Minister, Constitutional amendments were passed through parliament in which the Executive has been excluded from the appointments process.

Judges and magistrates will now be chosen by the President of Malta following a screening process and recommendation by the Judicial Appointments Committee.

The new system still has some flaws with Constitutional experts expressing their conviction that it should have been the sole discretion of the Judicial Appointments Committee to recommend the most promising candidate for appointment and not allow the final choice to be taken by the President, at his discretion. Informal government influence on the President’s choice still remains a concern.

Lawyers have also pointed out that the introduction of the new rule casts a shadow on sitting members of the judiciary who were appointed as a result of their political activism.

The most notorious case was that of the former Deputy Leader of the Labour Party, Toni Abela, who was made Judge soon after he resigned from his post in the governing Party and failed to make it to the European Court of Auditors.

The Chamber of Advocates reacts

In a statement following the publication of this article, the Chamber of Advocates said it has sought clarifications from the Judicial Appointments Committee in connection with section 2(3) of the rules and guidelines limiting applicants based on political or other affiliations.

The Chamber said that while it favours a policy intended to ensure that any person occupying judicial office is free from any actual bias or conflicts of interest, it expressed concern with the JAC about the 12-month cooling-off period, since an application of this policy would not have given enough time for eligible lawyers to sever any current affiliations in a number of organisations in which they may have held memberships, given that the policies were only published a few days ago.

Following clarifications received from the Committee, the Chamber said it understood that a passive or low-key membership in an organisation would not constitute an affiliation that creates the perception of bias or a conflict of interest and would only do so if accompanied by other factors that would create or are likely to influence public perception.

The Chamber encouraged all members who are interested in judicial office to apply since political or other affiliations will not necessarily be considered as creating a bias by the Committee.

                           
                               
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saviour mamo
saviour mamo
1 month ago

The scandal of Toni Abela was when he failed to report to the police the presence of drugs in a Labour Party club.

Godwin
Godwin
1 month ago

This is the way forward. And I suggest that lawyers who defended hard/tough criminals (like gang warfare, money laundering etc) are excluded to contest the parliamentary elections. It could result in a scenario of conflict of interest in the future for the party and above all for Malta’s rule of law.

Gee Mike
Gee Mike
1 month ago

There are many ways to skin a cat! Even the most honest and uncurruptable process can be expolited by the band of crooks that rule this country.

I would expect that any judge or magistrate that had a senior post or contested an General election linked to politiical party to resign within 4 years to cleanse our system. That would sort out the Judiciary.

Henry s Pace
Henry s Pace
1 month ago

What about that woman – VELLA who before being appointed to the bench she made a political speech and said ‘ viva l-labour ‘

Antoine Attard
Antoine Attard
1 month ago

With all due respect if the sitting magistrates who applied for a judgeship position accepted consented and signed the requested declarations the people out there trying to find redress before the Courts of law have to be worried!

Antoine Attard
Antoine Attard
1 month ago

Some of the requirements;

I understand that checks of my background are required to determine my suitability for public office, either because I am being considered for an appointment, or because the validity of my previous check will soon expire.

These background checks will include the following checks:

1. a check of my fingerprints by the Executive Police of police records relating to me, and where applicable, enquiries with police forces (the expression “police records” includes information related to criminal charges and/or convictions, details surrounding an offence or intelligence concerning a person’s involvement or suspected involvement in criminal activity);

2. a check with the Inland Revenue Department (IRD) – the IRD will indicate to the Judicial Appointments Committee by, without providing detailed particulars, whether there are any significant compliance-related issues relating to me under any Act administered in whole or in part by the IRD; and

I understand that applications to the judiciary may be considered at any time for a period of two (2) years and may be renewed by me by way of a separate application.

Therefore, I acknowledge and concur that this consent is valid for the entire period of my application for up to two (2) years beyond the date of my signature below. I understand that the information the Judicial Appointments Committee receives will be held in confidence and used according to law.

Therefore, PM Dr. Abela & Dr. Zammit Lewis are not sure of the members of the bench who applied to be elevated to Judges. Apart from that, the executive is interfering and submitting the judiciary for interference by the Executive.

Antoine Attard
Antoine Attard
1 month ago

But the cherry on the cake is the following;

1.      release, remise and forever discharge the Commission for the Administration of Justice (including any committee thereof) and the Chamber of Advocates together with their staff, and their members, and all individuals consulted in respect of my aforesaid candidature from any and all claims, courses of action, suits, actions and liabilities of every nature and kind whatsoever arising from, as a result of or in any way related to the release of the aforesaid information and documents and/or the consideration and assessment of my said application and candidature. 

Therefore, if there is information leaks or some other misconduct you cannot sue them since you have already consented by signing the relative document.

The most worrying part is the Judiciary Association which is made up of learned judges and magistrates is nowhere to be seen let alone heard!

Do not forget that these few are the ones who will decide any dispute before the Courts. How can this be done when they are not even capable of standing up for the BASIC RIGHTS that are assumed to be held up by them.

Antoine Attard
Antoine Attard
1 month ago

On a different note’

How on earth is possible for cases to be heard before Magt. Joe Mifsud & Magt. Donatella Frendo Dimech are given full media coverage a day before the case or even some few hours before? Is the Chief Justice aware of what is going on? Is the relation with the media prohibited by the judiciary code of ethics? If yes than I would suggest a serious investigation since I smell a big rat!

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