Senior justice sources have denounced the proposed reforms of the judicial appointments system unanimously approved by parliament three weeks ago.

Although the reform package remains under wraps, some details of the secret cross-party deal were published on Manuel Delia‘s blog. The Shift then gained access to fuller details, which were presented to legal experts for their assessment.

Former European Court of Human Rights Judge Giovanni Bonello was among the senior justice sources contacted for their reaction. He questioned what had changed, since the ‘power to choose’ remained in the hands of the prime minister.

“Nothing substantive will change because it’s still the prime minister who gets to choose who becomes magistrate or gets promoted to judge. Any lawyer who aspires to become a magistrate or judge, any magistrate who wants to be promoted judge, knows he or she must be in the prime minster’s good books because he retains the power to block appointments,” Bonello told The Shift.

Under the ‘new’ system, calls for applications would be issued for specific vacancies for judicial office. A Judicial Appointments Committee (JAC) composed of seven members – four elected by the judiciary, together with the ombudsman, the auditor general and the parliamentary commissioner for standards – would narrow down candidates to a shortlist of three.

Then it would be up to the Cabinet – in effect, the Prime Minister – to choose who gets the position, according to the new proposals that have so far remained under wraps.

“Everyone aspires to succeed in life, and the pressure on magistrates would be to court the prime minister’s favour as the best way to increase their chances of being promoted to judge,” said Bonello, who served for 12 years in the European Court of Human Rights before his retirement.

“These proposals, if implemented, will not strengthen judicial independence at all. They will only strengthen the illusion of independence.”

Other justice sources also expressed the same sentiment, and civil society organisation Repubblika has also come out swinging against the proposals. These reactions are set to complicate the reform process.

The government’s decision to seek appraisal of the proposed reform from the Council of Europe’s Venice Commission without first getting civil society feedback on its proposals has led Repubblika to write to the Venice Commission directly.

The European Commission for Democracy through Law (known as the Venice Commission) is an advisory body of the Council of Europe, composed of independent experts in constitutional law, and their opinion is often quoted as a point of reference in judgments of the EU’s court as well as the European Court of Human Rights. The Commission has now informed Repubblika that it would be consulted.

The reforms are urgently needed, at a time when this year’s retirement of four judges and the coronavirus-related disruptions are already exacerbating pressures in court.

Justice sources agree that appointment of new members to the Bench would have to wait until the reform is in place, particularly due to the pending case at the European Court of Justice (ECJ) brought about by a constitutional challenge to the system of judicial appointments by Repubblika.

European constitutional expert Matteo Bonelli told The Shift that consensus on reform of the system of judicial appointments in the interim would give Malta a smoother ride at the ECJ. “In case the reform is approved and generally considered positive,” he said, “the ECJ would certainly take that into account and would probably be much more prudent in its intervention.”

Will Venice Commission approve the proposals?

Justice sources also question whether the Venice Commission would “approve” the proposals, a clause inserted in the agreed parliamentary motion.

In December 2019, this Council of Europe body made recommendations that diverge from parliament’s proposals on the fundamental question of the prime minister’s ability to influence who gets appointed – a point that has not been addressed in the new proposals.

The Venice Commission had recommended that the appointments committee choose a candidate for a judicial vacancy “upon merit on pre-existing, clear and transparent criteria for appointment” and then put forward the “candidate or candidates directly to the president for appointment. Its proposals should be binding on the president.”

The lead delegate of the Venice Commission’s mission to Malta, Martin Kuijer, had told The Times of Malta that the aim was to divest excessive powers vested in the prime minister.

The Commission felt that a redistribution of powers away from the prime minister would buttress weaknesses in Malta’s rule of law.

“The Prime Minister should not have the power to influence the appointment of Justices and Judges-Magistrates. This would open the door to potential political influence, which is not compatible with modern notions of independence of the judiciary,” the Commission had said.

It also recommended the appointment of the chief justice in the same manner, but the cross-party proposals provide for appointment by a two-thirds vote of parliament.

A leading MP, speaking on condition of anonymity, defended the agreement. “Although no system is perfect,” he said, “experience has shown that key appointments made with two-thirds majority of the House are consistently good choices. The two-thirds measure usually compels the government to put forward someone who has respect across parliament.”

Repubblika seeks to end politicians’ influence on judicial appointments

Civil society organisation Repubblika maintains that judicial appointments have to be taken out of the hands of politicians – its proposals are largely aligned with those of the Venice Commission.

Robert Aquilina, Repubblika’s president-elect, told The Shift that the NGO recommended widening the membership of the selection committee to include retired chief justices who are not on the State payroll.

He referred to parliament’s proposals on the removal of members of the judiciary – the proposal is for the JAC to decide on impeachments directly. This, Aquilina said, was something that could be extended to the appointment system.

“The country has a chance to use reform of the system of judicial appointment to embark on the path towards a so-called second republic. Some power would shift from politicians to other democratic poles of power, like the judiciary, to safeguard its independence and allow for greater participation by civil society,” Aquilina said.

The problem, he added, was that politicians were reluctant to relinquish the reins of judicial appointments, possibly to retain control on public policy.

On this point, a senior justice source said that the issue could be solved by having the prime minister or president retain the power of vetoing a candidate nominated by the selection committee.

He said he supported the use of veto as long as it was applied judiciously, and the prime minister would have to “publicly explain the public policy reasons for rejecting a nominee.”

“The government has to engage with civil society and the judiciary to forge consensus on the reform. This pact between the political parties that is being kept hidden from the public is the wrong way to carry out reform, and it’s going to create more problems.”