The judicial appointments reform amendments of August 2016 are now law, part of the highest law of the land. Rather than ensuring that the most deserving, reputable, talented, capable, knowledgeable and upright members of the legal profession are appointed to the bench, the new law empowers the Prime Minister to exercise his political patronage to appoint whomever he wants, with no proper evaluation by an independent committee, to the office of Chief Justice.

If the Prime Minister wants to appoint the Attorney General, the Ombudsman or the Auditor General to the judicial organ, or a magistrate to the office of judge, he is not bound to require proper judicial evaluation of these parliamentary and public officers before their appointment.

It is unclear what will be the new procedure to be followed. Is it a one-way procedure, where the Prime Minister approaches these parliamentary and public officers soliciting them to accept judicial office or is it a two-way procedure, where parliamentary and public officers, once they consider that time has arrived for a career move, plead with the Prime Minister that they be appointed to judicial office while, in the case of magistrates, they end up begging the Prime Minister to forget those cases they have decided against his government and be considerate enough in their regard to appoint them judges?

In the case of those advocates who submit themselves to such an evaluation process, there is no guarantee that those who deserve appointment to judicial office will get it for the Prime Minister is not bound by the independent committee’s report. Nor is he bound by the principle of merit. Indeed, he is free to select candidates who performed miserably or who even failed the evaluation.

Nor does the Constitution oblige the Judicial Appointments Committee to issue a public call for expressions of interest as the wording of the Constitution does appear to allow an open call, all the year round, for any person who satisfies the criteria for appointment to submit his/her expression of interest, with no competitive selection taking place.

Yet when the Constitution regulates the public service it emphasises the need for a competitive exam for public office – but not for the judiciary. The impression which the Constitutional amendments give – wrongly – is that the judiciary are not an important organ of the State in so far as governance of the country is concerned.

These amendments have embedded into the Constitution new public service values hitherto unknown – those of mediocrity, nepotism, discrimination in treatment, elitism and favouritism. They are a historic mess never seen before in the annals of Maltese Constitution lawmaking. It makes banana republics shame themselves for not having adopted the new Maltese method of judicial appointment procedure themselves.

It makes banana republics shame themselves for not having adopted the new Maltese method of judicial appointment procedure themselves

What is noteworthy about the Judicial Appointments Committee is that although it is designated as an appointing committee, it has no power to appoint anybody, not even its secretary, who is appointed by the minister responsible for justice. Its title is therefore a misnomer.

The amendments are hugely embarrassing for the Chief Justice who is not entrusted with the appointment of his brethren and, in so far as judicial discipline is concerned, he has to dispense injustice to his brethren while knowingly infringing the right to a fair trial. On the other hand, it is also unbecoming of the Ombudsman to oblige him to participate in the deliberations of a committee which is marked by the hallmarks of bad governance. These constitutional amendments hark back to the Dark Ages.

As the constitutional amendment has been drafted, the committee does not need to issue a call for expressions of interest so that prospective candidates for judicial office may apply.

It only has to sit on the fence until a person writes to it seeking clearance that his or her expression of interest satisfies the criteria proposed by it and approved by the justice minister.

Nor does the Constitution allow the committee or the justice minister to make regulations to supplement its provisions. That the committee is powerless is indicative by the fact that even its own criteria for judicial appointment require ministerial approval.

As the Constitution does not specifically mandate a call for expressions of interest for judicial office issued by the committee, where a selection process takes place among those candidates who would have expressed an interest in such an office, it is not clear whether the committee has the power to issue such a call. This implies that if the committee cannot invite expressions of interest, it has no control on the timing of the receipt of expressions of interest and this means that no competition among candidates takes place so that the best candidate placed is chosen.

Provided that the committee is satisfied that the criteria are met, there is no ranking among candidates even if the committee has received 20 expressions of interest at one and the same time and all the 20 are certified as eligible. Who will rank the candidates if the committee does not carry out this task itself? It has to be the Prime Minister who does so.

For how long will the committee’s approval of a candidate for judicial office remain valid? Will it be one year, five years, 10 years or until that candidate attains retirement age?

The Constitution does not answer this question and although the committee might adopt its own internal procedure, there is no accountability or transparency in the committee’s functioning as it is not required to report to the public by means of an annual report. Everything is shrouded in secrecy thereby raising suspicions and legitimate concerns as to the Committee’s functioning.

The more I read the August 2016 amendments, the more I come to the conclusion that they were rushed through Parliament without proper planning and a thorough study of their implications to the proper administration of justice.

It is indeed a pity that high offices of the State have been cornered by Parliament through their involvement in the membership of the committee and placed in such an embarrassing position to require them to behave in an unbecoming way and not consonant with other laws they are called to administer.

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

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