Malta’s law regulating the appointment of judges and magistrates is “lagging behind” and should be updated by Parliament based on other countries’ experiences, according to the dean of the Faculty of Law.
In Malta judges and magistrates are only selected on seniority
Kevin Aquilina presented a paper to the select committee for the recodification and consolidation of Bills comparing judicial appointments in Malta with the systems used in other countries.
Prof. Aquilina said there were three main type of appointments used in Europe.
The first, that practised in Malta, Ireland and Australia, sees the government selecting and appointing members of the judiciary.
Then there was a system where the government appointed judges and magistrates on the recommendation of a judicial appointments board, as is done in Scotland.
The third consists of the judiciary being appointed by a Higher Council for the Judiciary, which is composed mainly of members of the judiciary. This system is practised in such countries as Italy, France, Spain and Portugal.
Prof. Aquilina said while most countries selected judges and magistrates on seniority and merit, the most favoured system was that of merit. In Malta, the only criterion used to qualify was seniority: 12 years of legal practice for judges and seven years for magistrates.
“Not only so but the selection and appointment procedure is not transparent, the consultative process is secretive and there no appraisal of the candidates against pre-determined qualification criteria,” he said.
Prof. Aquilina’s comparative analysis have shown an emerging trend favouring the establishment of judicial appointment bodies that either appoint judges or advise the government on the same appointments, such as by following recommendations by the bodies themselves.
“There is a movement towards an era where the judiciary makes the relative appointments and, where the Executive retains the right to appoint the judiciary, it does so on the recommendation of an advisory body that includes members of the judiciary.”
Prof. Aquilina said five of the nine members on the Maltese Commission for the Administration of Justice came from the judiciary.
“So it might not be a bad idea at all to task this constitutional Commission with either recommending directly to the President of Malta the making of a judicial appointment or advising Cabinet accordingly by providing a shortlist of candidates,” Prof. Aquilina said.
The Recodification and Consolidation of Bills Committee is chaired by Nationalist MP Franco Debono, who has included the issue of judicial appointments in a Private Member’s Motion. The committee is reviewing Prof. Aquilina’s paper for further discussion.