Inertia is a funny old thing. It is defined, in many physics textbooks, as that desire – possessed by all material things – for things to remain the same. It is that property which compels matter to remain in a state of rest (or of uniform motion), unless it is acted upon by an external force. Thus, a large boulder is difficult to move because of its inertia. A similar boulder rolling quickly down a hill is difficult to stop, also because of its inertia.
Nothing funny about that so far: complicated, perhaps, especially for those (like myself) who had an aversion to that which I considered the most difficult of school subjects. Let’s get to the funny bit. Inertia is, like so many things, something of a double-faced creature.
On the one hand it implies solidity: the ability to stay the course despite everything; the strength to avoid being unduly disturbed by the things around oneself. On the other hand, however, it implies reluctance: the disinclination – again, despite everything – to change one’s path even if that change may be perceived by some (or perhaps even by many) to be for the better.
This attribute, therefore, may be a force for both good and bad. Our role as good citizens – compounded when we find ourselves in a position of leadership – is to be able to discern that which is good, and which must therefore be left unchanged, and that which is less good, and which must therefore be altered.
We possess a great deal of inertia. It was characteristically demonstrated in the unwavering determination of the Maltese people which led us to victory in so many battles: the great sieges of 1565 and 1942 being two prime examples. A gritty determination that shouted, “We shall not be moved!”
Yet we Maltese also display an astonishing ability. That of adaptation, of evolution, of embracing change, and changing ourselves for the better. We have demonstrated, time and time again, the ability to recognise when things need tweaking, altering or outright replacement, and we have improved ourselves leaps and bounds because of it. In the broad historical context we have experienced being moved from pillar to post, from one occupier to the next, and adapted ourselves to survive and thrive.
Immense change was necessary when we embarked upon the great journey of nationhood – changing ourselves from dependence on a foreigner’s benevolence to a reliance on our own enterprise and determination. Further changes were necessary over the years, altering our methods of education, for example, to cope with the challenges of modernity. And each time we emerged successful.
One further consideration is necessary: identifying the stimulus that causes change itself. We change things either because we were doing it badly in the first place; or because circumstances have shifted, rendering a different strategy necessary.
The matter I am discussing is firmly based in the latter category, and has to do with the process by which we select those individuals in whom we place our ultimate trust: those whom we empower with the passing of judgement upon us and upon our peers.
We have demonstrated, time and time again, the ability to recognise when things need tweaking, altering or outright replacement
Partial as it might have been, the system we previously employed for the selection of judges and magistrates has indeed placed some fine legal minds upon the Bench. Yet we have all come to the realisation that modification was necessary, to comply ever more with one of the founding principles of a democratic State: the independence, in principle and in practice, of the judiciary from the legislative and from the executive.
For years we had a system based on the arbitrary evaluation of candidates by the executive for appointment to the judiciary, when a principal remit of the latter was, and is, to uphold the rule of law even in respect of the executive itself.
The Constitutional Reforms (Justice Sector) Act of 2016, is an evolutionary act that has injected further transparency, accountability and due diligence into a process that is the very starting point – the very foundation – upon which this essential trust in the individual members of the judiciary must be built.
Today, eligible candidates must submit a full application to a committee composed of independent and accountable individuals, some – but not all – of whom are derived from the legal profession. Such applicants are subjected to a process of assessment that is universally applicable following established criteria that are published in the Government Gazette.
Of course, the process itself must remain confidential, for obvious reasons: none of us, however well-meaning and however hard-working, can ever profess to possess perfection. It would certainly not be dignified to publish the imperfections – however slight – of those whom we hold to be the best of us all.
This process culminates in the provision to the executive of a list of candidates who have been independently found to be eligible for the judiciary. It thus diminishes the unwritten practice by which candidates used to approach (or be approached by) members of the government as the starting point of judicial appointment.
Ultimate responsibility, of course, must be retained by Parliament, which exercises sovereignty as representatives of the people. Act XLIV of 2016 therefore makes specific provisions allowing for exceptions to this process, subject however to the justification of the appropriate reasons before Parliament itself, to ensure political responsibility, and the maintenance of checks, balances, and accountability towards the citizen.
The Act went beyond the issue of the appointment of the judiciary, dealing among others with issues of a disciplinary nature and revisiting the pension schemes to be enjoyed by our retired Boni Viri.
This is not to say that the journey of change has been an easy one, or one dictated by a simple political whim. Far from that. It required the achievement of consensus within Parliament, which came packaged with much discussion and deliberation with key stakeholders, numerous drafting and re-drafting, and the sacrificing – by the political class – of a time-honored privilege which hitherto allowed them to unilaterally select members of the judiciary.
With Act XLIV of 2016 we have undoubtedly experienced ‘history in the making’, as the Opposition has rightly called it. Amendments to the Constitution are not a daily occurrence, and this Act required just that, with all the bells and whistles that accompany it.
Even the Association of Judges and Magistrates welcomed this new Act with satisfaction, applauding the fact that it received the full support of Parliament and hailing it as an important tool in safeguarding the impartial and independent administration of justice. It certainly ensures a transparent and accountable system that marks a departure from past practices while acknowledging the good that came before it. The Chief Justice himself has publicly encouraged all to treasure the value of this Act as a means of upholding a more effective separation of powers that is crucial in every democracy.
Let us therefore continue to build on all that we have achieved so far, so that, with full respect for all the heritage we have inherited, and with respect to the rule of law, we shall persevere in adapting ourselves to an ever-changing world, in order that we may be able to provide an ever-better country for ourselves, for our children and for our children’s children.
Mark Attard Montalto is chairman of the Mediation Centre.