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.