Malta will finally have a new representative be-fore the European Court of Human Rights. We have gone through a four-year political tug of war in this respect. The Council of Europe kept insisting that Malta should propose a female candidate among its three nominees, something which Malta was flatly refusing to do. The problem was only overcome when the government finally conceded and nominated Madame Justice Abigail Lofaro together with the other two nominees. Notwithstanding all this, the council members at the end of the day opted to vote for our present Chief Justice Vincent de Gaetano, and this quite frankly as expected, regard being taken of his high judicial rank. For the next nine years therefore, Chief Justice de Gaetano will be sitting in this extremely prestigious European Court and we therefore wish him well and hope he will enjoy a success similar to that of his illustrious predecessor.
As a result of this election, the post of our Chief Justice has hereby fallen vacant and the Prime Minister will soon have to advise the President in appointing his substitute. According to article 98 of the Constitution, however, the government can opt to fill the vacuum by temporarily appointing one of the judges of the Superior Courts as acting Chief Justice, and this till a final decision on the nomination to this all-important office is finalised.
Undoubtedly, the appointment of both the Chief Justice and that of all the other members of the judiciary is the sole prerogative of the government. I query, however, whether this should be the case with regard to the appointment of our Chief Justice who, according to hierarchy, heads the third most important office in the land. This office is slowly usurping the functions formerly pertaining to the Lord High Chancellor in the UK, who presides over the House of Lords from atop his woolsack. It is to be pointed out that though our Constitution provides for a separate Constitutional Court from that of our ordinary Court of Appeal, custom has it that since independence, the three senior judges who compose the Court of Appeal will also sit on the Constitutional Court. Thus the Chief Justice in actual terms occupies two offices, that is, the post of both President of the Court of Appeal as well as that of the Constitutional Court. Practically, therefore, all important appeals filed will eventually end up before him. It must also be emphasised that apart from his all-encompassing judicial role, over the last few years the office of the Chief Justice, rightly or otherwise, has been assigned far wider executive and administrative powers. All this makes this office perhaps the most delicate and responsible one in the land.
Strangely however, it is interesting to note that it is very much debatable from a juridical perspective whether the office of the Chief Justice enjoys the same entrenchment provisions as that of the ordinary judges, though to date no former incumbent has ever been forcefully removed from office. While article 95 clearly precludes the government from removing a judge from office, no similar mention in this respect is made with regard to the office of Chief Justice. This omission is certainly no lapsus and seems to have been purposely made. I dare say that this signifies that any appointment made today in this respect would not bar a future government from revising it, if particular extreme circumstances so dictate, especially since, as stated, the nomination process excludes consultation.
The appointment of judges and Chief Justices over the years has created quite a number of polemics and this also due to unwarranted political considerations in such choices though I say this without in any way demining their performance. This high office, being such a sensitive one, should always be aloof from political intrigue.
The government would do well not to casually and without good reason ignore issues of seniority in the selection of senior public officials, and this in order to steer clear from disruption and discontent. This consideration should definitely not be the only one taken in the nomination of people for high judicial office. On the other hand it should never be capriciously put aside. Such callousness more often than not will lead to much disillusionment and frustration within the rank and file of senior members of our judiciary. Experience has shown us that this can adversely affect the general performance of our judges to the detriment of one and all.
Dr Herrera is a Labour member of Parliament.