Beyond the issue of judges’ age

My colleague, government MP Franco Debono is well renow­ned for his outspokenness. Lately, certain remarks he made regarding measures taken by the Minister of Justice caught my attention. The government MP commented in the sense that it was surely somewhat contradictory for the Justice Minister to have appointed an elderly retired judge to conduct a sensitive inquiry when the same minister reiterated his stand regarding the mandatory retiring age of 65 for the judiciary. The minister has gone on record affirming his opinion that he was against revisiting the said age limit.

The issue was pertinently taken up by political correspondent and former minister Lino Spiteri who elaborated in depth on this apparent contradiction. The said correspondent took the opportunity to echo what has already been stated regarding the dangers of having members of the judiciary feeling forced to seek government posts upon retirement.

As a matter of interest, article 97 of the Constitution makes it compulsory for members of the judiciary to call it a day on attaining the age of 65. This signifies that this position cannot be changed without duly amending this provision of law, which would necessitate the support of two thirds of the members of Parliament. It must be recalled that, ironically, this same administration had, some time back, tried to circumvent this situation.

Back in the early 1990s, the office of judge sitting in the European Court of Human Rights was not regarded as being a full-time occupation. In fact, Malta’s first representative at this Court was Chief Justice Emeritus John J. Cremona who held on to both posts till retirement. This notwithstanding, however, over the years, as more and more states granted the right of individual petition to their citizens, the workload increased considerably to the extent that judges were finally finding it near to impossible to cope with all the backlog on a part-time basis.

It must be noted in this respect that, a few years back, the set-up of this prestigious Court was totally revamped. In this sense, the Commission was abolished and the members of the Court itself were to be regarded as being in full-time employment.

The successor of Prof. Cremona happened also to occupy the office of Chief Justice in Malta. This time round, however, due to the new exigencies in Strasbourg, Malta’s new representative found himself in a quandary and faced serious difficulties on how to cope with both offices due to an overwhelming workload.

Instead of proposing separating the two offices, by nominating a second judicial official, the Nationalist Party in government felt it should accommodate the incumbent. On account of this, the government duly made what it felt were crucial arrangements in order to restructure and reorganise the appellate court. In fact, a second appellate court was introduced. For this purpose, the government proceeded in appointing a retired judge, Ricardo Farrugia, and a retired former Attorney General, Joe Borg, as acting judges to preside over the second appellate court together with the Chief Justice in order to ease his burden.

As expected, this arrangement raised eyebrows, to say the least, especially within legal circles. On account of all this, the Chamber of Advocates went so far as to challenge the government on this arrangement. The Chamber of Advocates contended in a subsequent constitutional application that the way this second appellate court was constituted was illegal and ultra vires the Constitution. The Chamber argued that two newly appointed acting judges could not appear independent because, among other things, they did not enjoy the security of tenure awarded to the other judges.

The Constitutional Court, in the case Tonio Azzopardi nomine - vs - the Prime Minister, by judgment of November 4, 1992, upheld this request declaring the newly founded court as being anti-constitutional and nullified the appointment of the two acting judges.

One, therefore, wonders whether the question of age is really an issue for the government or whether it is merely a question of political exigencies.

Dr Herrera is a Labour member of Parliament and spokesman on justice.