Chief Justice Vincent De Gaetano was delighted by the appointment last week of two women to the bench of judges. However, he still advocates the setting up of a Judicial Appointments Board.

"Until last week Malta was, as far as I could make out, the only EU member without women judges. We have had women magistrates for a number of years and they have acquitted themselves well. We also have a woman on the court of first instance in Luxembourg but she is not a member of the judiciary under our Constitution. So Justices Lofaro and Felice are the first two."

"Under our present system which is modelled on an outdated English system, the decision to appoint a member of the judiciary rests exclusively with the Prime Minister who advises the President of Malta accordingly. There is no obligation to consult anyone, though I am sure that consultations with others do take place.

"Yes, I was consulted by Minister Tonio Borg, as I have been consulted on other appointments since I became Chief Justice. I cannot say whether my predecessors were consulted during their term as Chief Justices.

"Consultation is, after all, an indication of good working relationships. Until 1994 even the assignment of duties of judges and magistrates was the sole prerogative of the Minister of Justice.

"When the provision setting up the Commission for the Administration of Justice was introduced in the Constitution, a sub-section was inserted which provided that such duties - and the subrogation of judges or magistrates to hear particular cases in the event of an abstention - were henceforth to be assigned by the President acting on the advice of the Minister of Justice, but that the minister has, in his advice, to follow the recommendation of the Chief Justice. If the minister does not follow the recommendation of the Chief Justice he must publish a notice in the Government Gazette giving the reasons for refusing to follow that recommendation and must also make a statement in Parliament. Since 1994 no recommendation has ever been refused by the Minister.

"This provision has gone a long way towards ensuring that the Executive does not manipulate the duties of members of the judiciary to suit its purposes. At the same time there is a form of check on the powers of the Chief Justice."

Nevertheless, the Chief Justice believes that a Judicial Appointments Board would be a better system.

"I have for some time now been advocating the setting up of a Judicial Appointments Board as there are in most EU countries and in many Commonwealth countries. In most cases the choice of members of the judiciary has gone without hitches. In spite of the odd shortcomings, including my own, all the members of the judiciary do their utmost to administer justice in the best way possible given their workload and the resources available.

"But who takes responsibility for mistakes? Has the Executive ever taken responsibility for the choice when things go wrong - whether it is someone who does not perform his duties up to the expected standard or if, perhaps, someone were to do something seriously wrong?" he said.

Dr De Gaetano believes that a Judicial Appointments Board would be better able to carry out a vetting process than an individual or through informal consultations. And it would lay aside even the mere suspicion that an appointment has been made for some not altogether proper motive or consideration.

"I appreciate that in a small community like ours, wider consultation can cause problems as we all know each other and there could be conflicts of interest. However, the wider the consultation, the better.

"Ultimately someone has to decide but at least a board could draw up a shortlist, with possibly an order of preference," he said.

"Why is it so important to get it right at the outset? Because if the wrong decision is taken, it is very, very difficult to remove that person. And one bad apple tarnishes the whole judiciary."

The board would be made up of a wider representation of society than the Commission for the Administration of Justice, including lay people like academics as well as members of the judiciary and the Chief Justice, lawyers' representatives and maybe other commissions or constituted bodies. The Chief Justice believes that the terms of reference of the board should not be limited to judges and magistrates but to anyone who can decide cases, such as the commissioners of justice, adjudicators on the Small Claims Tribunals and the heads of ad hoc tribunals and commissions.

He is not at all comfortable with the present system.

"For example, a minister can appoint a member of the Judiciary judiciary to head a particular tribunal. Apart from the fact that this judge or magistrate is abruptly taken away from his duties, it also means that the minister could appoint someone amenable.

"Such appointments should be made in the same way that all other judicial appointments are made. Our system relies too heavily on the assumed integrity of individuals in positions of power, including political power. This is why I believe that any procedure should be institutionalised."

For example, if the minister or Prime Minister did not act on the recommendations made by the board, he or she would have to explain the reason publicly - say in Parliament.

"When we deliver a sentence in court we give our reasoning. Decisions may be overturned on appeal because there was some flaw in the reasoning... Likewise, those who appoint members of the judiciary should be held accountable for their decisions."

His stand is in line with international best practice. The Committee of Ministers of the Council of Europe, in a document entitlede On the Independence, Efficiency and Role of Judges, has recommended among other things that all discussion concerning the selection and promotion of judges should be based on objective criteria - and notably on merit, having regard to qualifications, integrity, ability and efficiency of candidates. It also recommends that the authority taking the decision should, as a rule, be independent of government and the administration.

There are other areas where he feels that a more transparent recruitment system would help, such as the appointment of lawyers who give aid in civil cases.

The Chief Justice sees other ways in which to improve the independence of the judiciary, including the court administration, which is currently dependent on the ministry for its budget and which does not need to consult with the Chief Justice.

He is on record as having stated (January 2005) that "as one of the three branches of government, the judicial branch is constitutionally, although not institutionally, independent".

He would be much happier if the courts were run by an independent agency, which in turn reported to the Chief Justice or the Commission for the Administration of Justice, for example.

"At the moment, in theory, the director general for the courts is answerable only to the Minister of Justice. He is responsible for everything from staff to the allocation of courtrooms.

"You could one day have a situation where the director general, acting on instructions from above, could refuse to assign a court to a particular judge or magistrate," he said.

"To (Minister) Tonio Borg's credit, since the new director general, Vanni Galea, was appointed, we have had a very good working relationship and anything that impinges directly or indirectly on the judiciary is referred to me for consultation and in many cases for my approval.

"But this should be entrenched in the law. It should not rely on personal relationships or goodwill. You have to assume the worst case scenario: That one fine day you might have a cowboy as the director general who might refuse to allocate a court to a judge. This is why I want any decision, which may directly or indirectly affect the judiciary, to be taken in agreement with the Chief Justice."

Wouldn't more power for the Chief Justice necessitate more accountability for him or her too?

"Indeed. That is the whole point: To create a system of checks and balances. An independent agency would be answerable primarily to the Chief Justice or to the Court of Appeal, who would, in turn, be accountable to some other entity - which I think should be the Commission for the Administration of Justice."

Another shortcoming of the judicial system is that discipline is difficult to impose. The only stick that can be wielded against a judge or magistrate is the threat of removal - hardly suitable when the problem is administrative or performance-related.

"What can the Commission do if the infringement is not serious enough to merit removal? It cannot impose a fine, for example, or suspend a member of the judiciary.

"All the Commission can do is write to him with a warning. It cannot even transfer him to another - inferior - court."

Shouldn't the Chief Justice be able to discipline the members of the judiciary?

"Not quite. This is another problem. Nowhere is it written that the Chief Justice is the head of the judiciary, as for example, the President is the head of the Executive. In theory he is only primus inter pares - first among equals - but over the years the requirements of the independence of the judiciary have necessitated that he assume powers and functions which were formerly exercised by the Minister and, before that, even by the Governor.

"I have to make it clear that there are very few problems and we have so far managed to solve them within these four walls. Goodwill and common sense have generally prevailed in the end and I have always had the fullest cooperation from most judges and magistrates. But the day may come when we are not able to solve problems as they have been solved so far. That is the day I prefer to avoid."

There have already been situations that he believes should never have occurred.

"It is unacceptable that a member of the judiciary cancels a sitting at short notice because he or she feels that there are insufficient staff.

"I appreciate that this is, may be, the last resort - and a sign of deep frustration with not being able to solve the situation otherwise - but we cannot allow ourselves to forget why we exist as a judiciary and what is our mission .

"There were other situations of great inconvenience, like for example when the air conditioning was not working and we had to transfer some of the sittings to another court. But it is not right to bring an average of 250 people here for nothing simply because the court is a member of staff short. It is simply not done. Matters like this should be referred to the Commission or to the Chief Justice to be dealt with appropriately.

"We have to remember that we are providing a service to the public, albeit under difficult circumstances relating to resources. But it is a service nonetheless, and an essential one in a democratic society based on the rule of law."