Giovanni Bonello, who sat on the European Court of Human Rights for 12 years, wrote in The Sunday Times of Malta late last year that Malta’s constitutional jurisdictions “are so ineffective in protecting some human rights that Strasbourg has given up on Malta doing the right thing. It tells the victims: you cannot, in some violations, expect human rights protection from the Maltese courts. Go ahead, ignore the non-exhaustion ban and bring your cases directly here. That is the European Court of Human Rights’ way of giving a vote of no confidence to the Maltese constitutional courts.”
French Constitutional Court president Laurent Fabius conveyed a clear message to all members of the judiciary when he addressed the official opening of the judicial year of the European human rights court last month: “Through our decisions and our conduct, we, as the guardians of fundamental rights, must stand together to oppose the madness of those Janus-like leaders and states who show a supposedly liberal face but whose other side is decidedly authoritarian.”
This demonstrates the grave responsibility the judges sitting on the Strasbourg Court are shouldered with. The same applies to those charged with selecting them, at both the domestic and European level.
The Parliamentary Assembly of the Council of Europe demands that the national selection process is “fair and transparent”. Still, the government has – so far, at least – been very economical with the information it was willing to dish out on the shortlisting of three candidates, one of whom will succeed Chief Justice Emeritus Vincent De Gaetano when his nine-year stint at Strasbourg expires in mid-September.
The selection process was launched in late November without any formal announcements. Questions by this newspaper to the Justice Minister added very little additional information. Then, on February 21, barely a fortnight before the Council of Europe would expect to receive the official shortlist, the government published the names of the three chosen applicants.
No details were given about the number of applications submitted, what criteria were followed and, more importantly, who sat on the selection committee, though its composition was reported by this newspaper.
How can it be ascertained that the national procedure desired by the Council of Europe was, in fact, followed?
How can it be ensured that no applicants were sidelined for no legitimate reason? It is known, for example, that among the unsuccessful applicants was an academic whose CV glows brighter than a lighthouse beacon on a dark winter night.
How can it be known that the shortlist was not drawn up in a way to leave the Parliamentary Assembly with no option but to choose one of the two judges nominated, thus allowing the government to appoint a judge of its choice on the domestic courts? The concerns expressed by the Venice Commission about the appointment of judges still resonate loudly.
Before the Parliamentary Assembly makes its final selection, an advisory panel is expected to give its confidential opinion to the government on the nominees.
The experts sitting on this panel should make a mental note of the questions and doubts raised above to ensure that the selection committee not only made the right choice but the best selection. For only the best can guarantee that the Strasbourg Court truly remains the bulwark for the protection of human rights in Europe.
This is a Times of Malta print editorial