Judicial independence at risk with new Bill, former judges warn

Legal experts and former judges have raised serious concerns over the Maltese government’s proposed constitutional amendments, particularly the creation of a Judiciary Standards Commissioner.

The planned reforms, tabled in Parliament as Bill No. 134, are part of broader efforts to amend Malta’s Constitution, but critics argue the measures risk undermining judicial independence.

The proposed office of the Judiciary Standards Commissioner would be tasked with monitoring judicial conduct and enforcing ethical standards among judges and magistrates.

According to the government, the post is intended to improve public confidence in the justice system and ensure accountability. However, the proposal has faced pushback over concerns that it could infringe on the constitutional principle of judicial independence.

A retired member of the judiciary, speaking to The Shift on condition of anonymity, described the proposal as a “superficial attempt” to improve judicial efficiency.

“This Bill is trying to be sold as some attempt to improve the efficiency of justice in Malta. It will achieve nothing of the sort except possibly add a new post… which would amount to an interference with the workings of the members of the judiciary on the Commission for the Administration of Justice (CAJ),” the former judge said.

He further warned that the Bill could compromise judicial independence by making the extension of judicial appointments contingent on the CAJ’s approval.

“The current lack of efficiency in the administration of justice is due to a lack of serious and focused investment by the government in human and other resources,” he added. “The CAJ works on a shoestring budget, unable to engage the proper experts to assist them and to commission studies and reports.”

Malta’s current oversight mechanism for the judiciary operates through the CAJ. The concern is that the new role could duplicate or conflict with existing structures, potentially politicising judicial oversight.

The retired judge also criticised recent legislative changes, particularly to the Criminal Code, which he said have created procedural complications and delays:

“There is no indication that the government is even considering trying to rectify this situation of its own creation.”

The government has yet to confirm whether it consulted the Venice Commission, the Council of Europe’s advisory body on constitutional matters, before drafting the Bill.

Former European Court of Human Rights judge Giovanni Bonello also voiced unease, in response to questions from The Shift, expressing support for certain reforms while strongly opposing others.

“Bill No. 134 is, overall, a bit of tutti frutti. It contains proposals that are neutral, some praiseworthy, and others that are absolutely scary,” Bonello said.

He praised measures such as raising judicial retirement ages, increasing Constitutional Court sections, and giving the judiciary a voice in appointing the Chief Justice. However, he questioned proposals to allow former judges to become President of the Republic, arguing it could erode the perception of impartiality.

“The drafters of the original Constitution were, wisely, well aware that members of the judiciary must never be tempted with the possibility of prizes and advancements,” he said. “That would objectively and lethally undermine their independence.”

Bonello also warned that establishing a Judiciary Standards Commissioner could pose significant risks: “Everybody agrees that all public powers should be wielded transparently… But striking the right balance between these undoubted values and ensuring judicial independence will, in practice, prove to be almost impossible tightrope walking.”

The Opposition has echoed some of these concerns, calling for comprehensive public consultation. In a statement, the PN said it supported constitutional reform but criticised the government for rushing the process.

“The draft Bill was presented in haste due to deadlines the government had long been aware of… The PN Parliamentary Group firmly believes that any changes to Malta’s Constitution should only take place following a broad and effective public consultation process.”

The party reiterated its support for a structured constitutional overhaul led by the President of Malta and the Constitutional Reform Committee, not what it described as “piecemeal and sporadic” amendments.

The PN also reiterated its proposals for reform, which include changes to the Electoral Commission and Broadcasting Authority, implementation of recommendations from the Daphne Caruana Galizia public inquiry, and introduction of environmental rights into the Constitution.