Too quick to judge

The Opinion of an Advocate General of the European Court of Justice (ECJ) delivered last week has surprised both parties to the cause – civil society organisation Repubblika on the one hand, and the Maltese government on the other – as well as European constitutional scholars who expect the EU court to use the case to develop higher standards in the appointment of judges across the EU.

The case revolves around questions on whether the discretion of the Maltese Prime Minister in appointing and promoting members of the judiciary is in breach of EU law provisions on right to fair trial and right to effective remedy.

The Opinion was prepared by Advocate General Gerard Hogan, a former Judge in Ireland’s high court, who argued that there is nothing inherently wrong in having former political operatives appointed to the judiciary and political leaders “play a role” in appointing Judges.

This argument has been hailed as a vindication of sorts by the Maltese government, although that’s premature. An Opinion is not a judgement, and nothing in the workings of the ECJ offers any indication that it is now less or more likely that the Judges themselves would reach the same conclusions in the judgement.

These Opinions are independent, scholarly analyses sought by ECJ judges in cases that have a particular impact on the development of, or constitutional import of, EU law.

The Judges – and this case, given its impact on EU constitutionalism, is being heard by the Grand Chamber, a thirteen-judge assembly that includes the president and vice-president of the ECJ – may choose to deviate fundamentally from the Opinion, or adopt parts of it.

Another nuance is that this case falls under the so-called preliminary reference procedure in which a court in an EU country – in this case, the Maltese lower constitutional court presided by Chief Justice Mark Chetcuti – refers a case to the ECJ for guidance on interpretation of EU law, which takes primacy over national law.

The ECJ’s judgement then merely explores broad principles, and in that manner gives guidance to the referring Judge to take a decision on the specific case before him.

As Hogan wrote in his Opinion: “It is for the national court to ascertain whether these guarantees [of judicial independence] are in fact in place”.

In making the reference, the Maltese court asked three questions of the ECJ.

The affirmative answer to the first question – whether the system of judicial appointment in Malta falls under the jurisdiction of EU law – is obvious given the recent evolution of EU constitutionalism.

The second asked whether the “power of the Prime Minister in the process of appointment” conforms with the two EU law provisions invoked by Repubblika in its constitutional lawsuit.

This abstract, generic question elicited an abstract reply: Hogan found nothing inherently wrong in having a key government official, in the case the Prime Minister, “play a role in the process of the appointment of members of the judiciary.”

He also said that there is nothing inherently wrong in having former politicians appointed to the judiciary and mentioned, by way of example, political appointees to the supreme courts of Germany, France and America.

That’s plausible and reasoned. The argument could even be taken a step further. It could be argued that former politicians have the benefit of a sense of social mission and calling, as well as strength of character and political experience.

Yet the issue here is of scale. Research by retired human rights Judge Giovanni Bonello has found that around two-thirds of magistrates and Judges appointed since 2013 have been drawn from Party lines. And since around half of the present complement of the judiciary has been appointed since 2013, there are justifiable concerns about possible partisan imbalance.

It’s more a question of probabilities than generalisations. At one end of the spectrum are a proportion of former Labour politicians appointed to the bench who do their job well and are independent-minded; at the other end are those whose decisions are either plainly poor or subjective, and give rise to suspicions, and affecting, rightly or wrongly, people’s confidence in the justice system.

It does not help that former Prime Minister Joseph Muscat appointed his personal lawyer Pawlu Lia to the Commission for the Administration of Justice, which has the power to impeach members of the judiciary (he also appointed Lia’s son as a Commissioner of Justice and his daughter-in-law as a magistrate).

Hogan’s predicament or omission is that these specifics are beyond the scope of a preliminary ruling, and this makes his Opinion merely a legal analysis.

Hogan went on to argue that more important factors in considerations of judicial independence are security of tenure, insulation from arbitrary discipline or impeachment by the government, and freedom “from any relationship of subordination or hierarchical control by either the executive or the legislature”.

This misses the fact that in Malta the opposite is relevant: members of the judiciary have long been unimpeachable since they hail from one or the other political camp, and this makes it highly unlikely that the vote of two-thirds of MPs could be garnered to impeach a member of the judiciary.

Now the system has changed, but they probably also remain unimpeachable because of the composition of the body that can now impeach them – the Commission for the Administration of Justice. Its composition would make its decisions challengeable in court on technicalities of objective bias.

This means that a member of the judiciary can take wrong, biased decisions, and get away with it.

The Prime Minister also wields potential, perverse influence through his discretion in appointing retired members of the judiciary to boards, directorships, commissioners, as well as various constitutional or ad hoc committees. These are coveted, well-paid appointments for retired members of the judiciary, and their interest is in not rocking the political boat to be favoured for these appointments upon retirement.

This creates conditions for an indirect relationship of subordination not only towards the government of the day but also for the political class more generally. (The current setup, for example, discourages judicial activism or bold judgement that might ruffle the political consensus or duopoly.)

On the third question, on nullifying past judicial appointments (this in reference to the last six appointed on the same day that Repubblika filed its lawsuit), Hogan went out on a limb with arguments that past appointments couldn’t be called into question because effective legal protection is “forward looking”, and any such decision would undermine “legal certainty” and matters that were “res judicata”.

The 13 Judges that are now set to formulate the judgement, which include the President and Vice-President of the European Court, have to decide whether to adopt in part or in substance Hogan’s Opinion, or whether to discard it.

It is not an easy decision given the facts of the case and the awareness of the effect of their sentence on the trajectory of rule of law in EU countries.

On the one hand, the Maltese Prime Minister did not only “play a role in appointments” – he had near-absolute discretion in a non-transparent system – and if the ECJ had to normalise this, even if unwittingly, it would give ideas to populists in the EU on what they can get away with.

On the other hand, they will be aware of the destabilising effect on Malta’s justice system if the legality of the system would be called into question.

The ECJ judges would also have to take into account that Malta has now reformed its system of appointment, which has diminished the Prime Minister’s potential influence on the judiciary.

All of this may offer the Judges a chance to craft a calibrated judgement that delineates new bounds on political influence on judicial appointments – and in the process develop EU law in this sphere – while remaining vague on the Maltese questions to enable the referring judge, Mark Chetcuti, to craft his own local solution to the specific case in Malta.