The appointment of judges and magistrates has for decades been viewed as a political process because of the way it was handled. This should no longer be the case if the proposed criteria compiled by a Committee on Judicial Appointments are implemented by the government.
The new criteria give weight to merit as the cardinal quality for selection as a member of the judiciary. Prospective candidates interested in serving as judges or magistrates would have to apply when vacancies are advertised and applicants are then subjected to selection tests. The process of selection still needs to be defined in some detail but it is likely that such appointments will no longer be primarily an exercise in political strategy. We all trust that will indeed be the case.
The criteria defined by the Committee of Judicial Appointments, which was made up of the Chief Justice, the Attorney General, the Auditor General, the Ombudsman and the president of the Chamber of Advocates, are not very different from those EU regulators recommend for the selection of directors for important institutions like banks.
The first criterion is that a candidate should have a valid warrant to practise law. This is hardly surprising but it may need to be refined even more. The UK Constitutional Reform Act of 2005, for instance, introduced a requirement that, in making selections, the appointments commission “must ensure that between them the judges will have knowledge of, and experience of practice in, the law of each part of the United Kingdom”.
We do not have different laws applying in different parts of the country but the issue here is one of encouraging diversity and collective competence that could include expertise in different aspects of laws, gender diversity as well as judges’ different judicial philosophy and place in the political spectrum.
Ordinary people exposed to the experience of being a party to a lawsuit will be relieved to know that new judges are expected to be “capable of communicating clearly and succinctly in both Maltese and English”. The judiciary seems to have a language of its own. Most judges and magistrates do not only speak a hybrid language that sounds like a mixture of old Italian and archaic Maltese but compile long-winded judicial documents that few people outside the legal profession seem to understand. As a result, very wise words and solid logic are lost ‘in translation’.
Of course, being impartial and independent is essential. Irrespective of any past involvement in politics or in any other profession, once a person is promoted to the Bench, s/he is expected to be unbiased not mainly in the use of words in a judgment but, crucially, in spirit.
The ability to work in a collegial environment is also a must for members of the judiciary. In management parlance this is termed as teamwork. Internal discussion/consultation is not a weakness but a clear sign that those sitting in judgment are resolute in making the best possible decision and are as fair as humanly possible. The drafting of sentencing guidelines – if not a sentencing policy – could also be opportune.
A very important consideration is the code of ethics that members of the judiciary should adhere to in order to ensure they have no conflicts of interest in what they do in their private lives and what they do in their official capacity.
The mechanics of judicial appointments is now clearer but only time will tell if it will be more effective in dispensing justice.