The inevitability of court reforms has recently been the subject of much discussion. The ongoing debate is about the need to strengthen the independence of the judiciary and make it more accountable. The Leader of the Opposition has gone so far as to declare that it would be a future Labour government’s priority to introduce such reforms within a year.
In the code we have considered ways of increasing the President’s power- Josè Herrera
It must be pointed out that, over the past three years, the Recodification and Consolidation of Law Committee, chaired by Franco Debono, and of which I was a member, has been tackling this sensitive issue. In this regard, the committee took the initiative to draft an exhaustive Bill consisting of an Administrative Code containing 1,017 articles and 22 schedules together with a draft Bill aiming at amending the Constitution of Malta to bring the latter in line with the proposals made in the Administrative Code.
It is worth noting that articles 83 to 160 refer specifically to the judiciary. The reforms being proposed fall under the title Of the Judiciary and the Executive. This title consists of various subtitles: On the Remedy for Breach of Independence of the Judiciary; Standards of Judicial Independence; The Judicial Appointments and Promotion Board, Discipline of the Judiciary; Of the Judiciary and the Legislature; Of the Terms and Nature of Judicial Appointment; Of Judicial Removal and Discipline; Of the Training of the Judiciary; Of the Media, The Judiciary and the Courts; Of the Standards of Conduct, Of Securing Impartiality and Independence and, finally, Of the Internal Independence of the Judiciary.
The first subtitle deals with the strengthening of judicial independence and aims at involving the President of Malta in this regard. In article 84, for example, we find the following:
“(1) Should a member of the judiciary feel that his independence is, has been or is about to be threatened by the Legislature or the Executive, he may apply in writing to that President of Malta seeking the President’s protection.
“(2) If the President believes that such threat exists, has existed or is about to exist, he shall, in his capacity of guardian of the Constitution, following consultation with any person or body, issue an order requesting the Legislature or the Executive to desist from interfering with the independence of the judiciary”.
Though the President, to date, is primarily vested with what is referred to as moral authority it has long been disputed whether the Head of State should be enhanced with more executive power albeit with limited scope within the dictates of a parliamentary democracy.
In the draft code in question, we have considered ways of increasing the President’s power. We felt that this could be done with regard to the Head of State’s task as the defender of the Constitution and, as such, could be accorded more of a pivotal role in guaranteeing the independence of the judiciary.
Subtitle three – The Judicial Appointments and Promotion Board – refers to the creation of an advisory selection board for the judiciary. In assessing the introduction of such a board, we considered various other options regarding the way members of the judiciary were to be appointed and later on promoted.
We considered, for example, the continental system of career judges. Here, people study to become members of the judiciary and are not appointed by the Executive. After much thought, however, we rejected the idea of proposing such a system for various reasons.
We felt that, given the limitations to Malta’s human resources, it would not make sense to exclude some 95 per cent of the members of the legal profession from such appointment. Furthermore, we felt that it would be healthy for the members of the judiciary to hail from different sectors of the legal profession, thereby encompassing a far greater field of expertise.
Our options were reduced to two.
The Executive would either have to renounce to its authority completely in the selection of our judges or else condition its discretion by having to seek prior consultation. We opted for the latter, the reason being that, at the end of the day, it is the Government that is accountable to the people and, therefore, must assume its responsibilities even in this regard.
Here it is worth quoting the relative proposed article of the Bill. Article 88 states:
“(1) Judicial appointments and promotions shall vest in the Government who shall act on the advice of a Judicial Appointments and Promotions Board.
“(2) The board’s criteria shall include the following:
“a) High level of legal knowledge and experience.
“b) High level of skills and competence in interpretation and application of the law.
“c) Ability to apply the law to make sustainable decisions.
“(3) Merit shall be the criterion upon which the judiciary shall be appointed and promoted, however, seniority shall also be taken into consideration when appointing judges from among magistrates.”
It is felt that such a process will come a long way in making the procedure for the appointments of members of the judiciary far more transparent.
Finally, in this sense, it will also make the Executive far more accountable in the event that it would capriciously reject the advice of the board in question once the selected member fails to perform.
Josè Herrera MP is the Labour Party’s spokesman on justice.