Until August 4, 2016, members of the judiciary were appointed by the government. No consultation was held on such appointments consisting in a unilateral decision based on political patronage. Nor was any evaluation carried out of prospective candidates to judicial office.

On August 5, 2016, the Constitutional Reforms (Justice Sector) Act brought about some changes. It retained the status quo as to the appointment of Chief Justice, established a Judicial Appointments Committee (‘the Committee’), and gave an unjustified privileged advantage to certain parliamentary offices and public officers over other advocates who: (i) have to submit an expression of interest for appointment to judicial office; (ii) are evaluated and; (iii) are interviewed. It set out the composition of the Committee and its functions.

Although one would have expected that these amendments would have ushered in more transparency, accountability and openness in judicial selection, they fail miserably in this task.

Their end result is that the government has not allowed the judiciary to appoint their own brethren as is the case in continental Europe. Such power has been retained, concentrated in the hands of the government with utter disrespect to the doctrine of the separation of powers which mandates that the judiciary should self-regulate itself.

The reasons why the 2016 amendments are backward looking follow.

First, as to the appointment of Chief Justice, the August 2016 amendments retain the status quo ante. S/he continues to be appointed by the President on the binding advice of the Prime Minister. There is no need to issue a public expression of interest for prospective eligible applicants to apply. Nor are the candidates for the office of Chief Justice grilled before the newly established Committee or vetted in any other way.

Essentially the Chief Justice continues to be appointed in the same way as other political appointees. Nor is the leader of the Opposition consulted in this constitutional appointment to the top judicial office in Malta.

The situation is further compounded by the fact that the Chief Justice may be chosen from among advocates, not from among judges who would have probably at least already been subjected to an evaluation procedure. However, if an advocate is appointed, via political patronage, as Chief Justice, s/he bypasses the whole evaluation system.

That is totally conducive to bad governance because it establishes a twofold system of appointment: one which requires judicial evaluation and one which does not.

And to make matters even worse, it is the highest office in the judiciary which does not require judicial evaluation.

Second, the Committee is composed, inter alia, of the Auditor General, the Commissioner for Administrative Investigations (the Parliamentary Ombudsman) and the president of the Chamber of Advocates. In the latter’s case, the amendments debar him from being appointed to judicial office unless at least two years would have elapsed since he last sat on the Committee.

But for the Auditor General and the Parliamentary Ombudsman – should they be advocates with at least 12 years of professional practice in Malta – no such two-year qualification is required: they can be appointed on the bench on the very same day they resign from Auditor General or Ombudsman.

This is not conducive to good governance for two members of the Committee to be appointed on the judicial organ of the State without a breathing space of time having elapsed, gives the impression that they have appointed themselves to the bench simply because they happen to be members of the Committee thereby bypassing the public call for expression of interest application procedure.

Power continues to be concentrated in the hands of the government with utter disrespect to the doctrine of the separation of powers

This reminds us of Prime Minister Francesco Buhagiar’s appointment to the bench. This procedure does not augur well in so far as transparency is concerned.

One asks: why is the president of the Committee of Advocates afforded a different treatment and granted second-class status when compared to the parliamentary and public officers mentioned above?

Third, the new constitutional provision establishes a twofold category of applicants for judicial office, the privileged and the underprivileged. If a person occupies the office of Attorney General, Auditor General, Ombudsman or magistrate, then s/he forms part of an elitist category of parliamentary and public officers who are afforded different privileged treatment from the underprivileged category of advocates who have to go through a cumbersome application process.

Even judges are not treated in the same privileged way as magistrates are in the case where a judge is to be appointed Chief Justice. In the case of judges, the Chief Justice need not be chosen from among judges and is not subjected to any form of evaluation.

These privileged parliamentary and public officers do not submit themselves to any form of judicial evaluation process like the underprivileged advocates have to do when submitting an expression of interest to join the judiciary.

The latter are subject to a due diligence screening process which includes attendance at an interview, a judicial evaluation and the provision to the Committee of information from any public office. Yet, in the case of these parliamentary and public officers, the selection standards have been deliberately lowered. Why is this so?

These officers were, on appointment, not even subjected to proper evaluation when they were appointed to the parliamentary and public offices they hold. But even if this were the case – which it is not – time would have elapsed since this judicial evaluation would have taken place.

The same applies to magistrates who might have been subjected to such an evaluation process several years before they were appointed magistrates and, on their appointment to judge, a 20-year period might have elapsed since such evaluation was last held.

There have been several instances in the past where promotion from magistrate to judge took several years to materialise.

Fourth, although the Prime Minister is requested to seek the evaluation of the Committee with regard to selection of an advocate from the second class underprivileged category before he advises the President to appoint him/her judge or magistrate, the Prime Minister is not bound by that advice.

All the time, money, energy and resources invested in the judicial evaluation process is thrown overboard simply because the Prime Minister might not agree with the advice given by the Committee.

This means that the Prime Minister is at liberty to appoint the candidate who placed right at the very bottom of the list or who failed the judicial evaluation process, even though there might have been adverse peer references on that candidate or the candidate had a reputation among his/her peers of incompetence, of being outright lazy or skirts responsibility or taking decisions.

Provided that the Prime Minister or the minister responsible for justice publish a declaration in The Malta Government Gazette announcing that the Prime Minister will not comply with the result of the judicial evaluation and the reasons therefor – which can be very flimsy and devoid of detail – are explained in a statement in the House of Representatives, then any advocate tainted with professional mediocrity can be appointed to the judiciary.

This provision defeats the whole purpose of having a Judicial Appointments Committee set up and a proper judicial evaluation procedure.

Kevin Aquilina is dean of the Faculty of Laws at the University of Malta.

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