The House Committee for the Codification of Laws agreed yesterday on a process to reform the Commission for the Administration of Justice so that it could be more effective in holding judges and magistrates to account.
The committee, chaired by Franco Debono (who had proposed the committee’s setting up), was discussing the compilation of an Administrative Code, which will consist of close to 1,000 sections and is being piloted by Prof. Kevin Aquilina, Dean of the Faculty of Laws. The Code, the first of its kind in Malta, is close to completion.
The committee agreed that while the independence of the judiciary should not be touched, there needed to be ways to hold judges to account, when, for instance, the number of pending cases before them grew without justification.
The committee also agreed that there should be further discussion on the manner how judges are appointed.
Labour MP José Herrera said that apart from qualifications, the issue of seniority should not be ignored. Nothing frustrated members of the judiciary than to be passed over – such as for the appointment of Senior Magistrate – for no apparent reason, leading one to suspect that one person could be closer than the other to the party in government.
Dr Debono agreed that everyone had his dignity and everyone was frustrated when less-suitably qualified persons were appointed to higher positions.
Dr Herrera also insisted that the Chief Justice should not take on the role of the executive in making administrative appointments. While it was proper that the Chief Justice should assign cases in court, administrative appointments should be made by the executive. Separation of powers between the executive and the judiciary was important but it had to go both ways.
Dr Debono said the courts should be independent, and the laws needed to be clear on the assignment of responsibilities. One should avoid undue ministerial interference but one should also avoid a situation where a chief justice could reduce magistrates to nothing more than his glorified secretaries. One should avoid a situation where the Chief Justice usurped the powers of the executive.
Dr Herrera said the Chief Justice should not be like the Lord High Chancellor in the UK and administrative appointments should rest with the executive, which had political accountability. To have the Chief Justice making administrative appointments without accountability was wrong.
Francis Zammit Dimech (PN) said Dr Herrera wanted to take back powers which had been given to the Chief Justice. This was a step backwards to the 1970s where the minister decided everything.
Dr Herrera protested that that was not what he had said, and he only wanted to ensure there was the proper separation of powers found in democratic countries abroad. The independence of the judiciary should not be touched, he said, but administrative appointments should not be made by a person who was not politically accountable. Dr Debono said there was common ground in that some appointments were purely judicial while there was a grey area on administrative appointments, and this needed to be discussed further.
He said that the committee, possibly in association with the Law Reform Commission, needed to conduct an analysis on the composition, functions and powers of the Commission for the Administration of Justice. It should see what the situation was abroad, and draw lessons as required. It should also hold talks with retired judges, the Chamber of Advocates and other responsible quarters on this delicate issue.
Dr Herrera said the current situation was not good, since the only manner of accountability was impeachment, which was an extreme measure for the most serious of cases. There could be instances where judges and magistrates needed to be held to account for less serious matters but no effective measures were available at the moment. Such accountability should be exercised through the commission. Dr Debono said this would be a delicate reform which should introduce a degree of accountability without, however, interfering in the independence of the judiciary.
He pointed out that most members of the judiciary performed their duties well. The committee agreed and particularly noted the discharge of functions by Mr Justice Gino Camilleri and Magistrate Saviour Demicoli notwithstanding their health problems and difficulties.
The committee today also discussed a draft Bill in line with the terms of reference of a motion moved by Justyne Caruana (PL) and approved by Parliament on reforms in the Gozo court.
The committee meets again on Monday.