I read with pleasure that the position paper on judicial appointments issued by the Chamber of Advocates has provoked a positive reaction by the Nationalist Party. In fact, the leader of the Opposition has enshrined the Bonello Commission’s recommendations on the matter and the Chamber of Advocates’ proposals in a Bill that was launched on Thursday.
Entitled ‘The judicial services appointment authority Act 2016’, the Bill proposes the setting up of a Judicial Services Appointment Authority. It would be responsible for making recommendations and appointments to the judiciary within a transparent and public process free of any involvement by Cabinet.
The Bill provides for the entrenchment of the proposed authority in the Constitution. It also proposes that the minimum practice period eligibility requirement for those appointed judges and magistrates is raised from 12 years and seven years respectively to 15 years in both cases – 10 years of which have to be in the regular exercise of the legal profession before Maltese courts and tribunals – and also that the retirement age of judges and magistrates will be 68 and not 65.
The sooner the House of Representatives starts discussing the justice sector reform and judicial appointments, the better for this matter, which has been pending since the conclusion of the Bonello Commission report on November 30, 2013.
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It is also a positive step in the right direction that the minister responsible for justice has declared he would soon be going to Cabinet with a Bill related to judicial reform. In this way, there will be two complementary draft legislative proposals covering judicial appointments and the House will have the luxury of being spoilt in terms of choice and adoption of the best provisions from both Bills.
Discussion during the Committee Stage will tie together both draft Bills, thus giving better flesh to the Bonello Commission recommendations and the Chamber of Advocates’ position paper.
It is also to the credit of the Chamber of Advocates that it has identified the qualitative selection criteria for judicial appointment that are missing from the Constitution. Unfortunately, the Constitution only establishes one criterion, that of seven years practice, for appointing a magistrate and 12 years practice in the case of judges. This criterion has not been revised for the last 80 years.
The quantitative criterion was first introduced in the 1936 Constitution following a recommendation by the Royal Commission of 1931. Although the 1936 Constitution favoured a 12-year practice period for judges (retained to date in the 1964 Constitution), Sir Arturo Mercieca suggested 15 years practice for judges to the 1931 commission.
The Bill presented by the Opposition takes on board Sir Arturo’s suggestion that makes more sense today in the light of the increase in the competence of the inferior courts over time, especially in the criminal law field where, in terms of changes introduced by Owen Bonnici. Now, the Court of Magistrates can send an accused person up to 12 years in prison instead of the three-month maximum as was the case prior to the 1963 amendments to the Criminal Code. It should also be borne in mind that the extended jurisdiction of the Magistrates’ Court was then six months imprisonment, not 12 years as it is now.
I earnestly look forward to see the enactment of a law on judicial appointments and holistic justice reform. Such a move would constitute a considerable way forward in the improvement of the services provided by the justice sector in the interest, and for the benefit of all society.
Kevin Aquilina is the Dean of the Faculty of Laws at the University of Malta