‘What worked in the past may no longer be valid today’

The Court of Appeal has rejected the appeal by the Attorney General that civil society organisation Repubblika had no right to contest the government’s intervention in the appointment of magistrates and judges.

As a result of this ruling, Repubblika’s case will be heard before the Constitutional Court. The case will continue against Prime Minister Joseph Muscat, who holds unfettered discretion to appoint judges and magistrates to the judiciary without any form of judicial review, and such appointments are not subject to any limitations or objective criteria.

“The Court notes that laws are subject to change, and what worked in the past may no longer be valid today. In other words, the fact that magistrates and judges have been appointed this way in the past, and there was nothing wrong with that, it does not mean that this method is still satisfactory,” according to the decree that referred to the findings by the Venice Commission.

The Venice Commission report states that Malta does not have separation of powers or constitutional control by the courts. There is a serious lack of checks and balances, and citizens do not have access to justice in all cases, making the country’s legal system inconsistent with essential requirements of the rule of law, and therefore inconsistent with the very concept of democracy.

Yet, the Court rejected the request by the organisation to stop the appointment of new magistrates and judges until the case was decided.

Repubblika has also asked the European Commission to look into whether Malta’s system of judicial appointments violates EU law. The organisation raised concerns about a number of the provisions of the Maltese Constitution and their implementation by the government.

“This state of affairs is in breach of the EU Treaty that forms the basis of EU law and sets out the general principles of the union,” Repubblika said.

In the complaint to the Commission, the NGO referred to the fact that in October 2018 EU Commission took Poland to the European Court of Justice for lowering the age at which Supreme Court judges are required to retire. Last June, the European Court of Justice handed down a landmark judgment which ruled that Poland had breached EU law in the way it handled the judiciary, harming its independence.

“In Malta, the discretion of the Prime Minister is even wider, even more unfettered, even more nebulous, and even more abused than that prevailing in Poland,” Repubblika said.

Although the Constitution has been amended in 2016 to provide for the setting up of a Judicial Appointments Committee, its recommendations were merely consultative in nature and did not constitute any legally-binding obligation on the Prime Minister.

The Prime Minister is also empowered to promote magistrates to the rank of judges under the same unfettered discretion afforded to him by the Constitution. He has the power to appoint the Chief Justice unilaterally and to appoint retired judges to public office, such as to head public institutions.