Two judicial acts were filed on Tuesday afternoon by Repubblika, following upon Monday’s first hearing in the case instituted by the civil society organisation against the Prime Minister and the Justice Minister, explaining why it was requesting a preliminary reference to the European Court of Justice.
Drawing parallels with a similar scenario in Poland, the applicants pointed out that the discretion exercised by the Maltese Prime Minister, who held the final say in the appointment of members of the judiciary, was even more dangerous than that exercised by the Polish President.
Whereas the latter was a constitutional figurehead with limited powers, the Maltese Prime Minister was effectively the head of the executive and the government of the day.
Reference was made to recent judicial reforms in Poland lowering the age of retirement of members of the Supreme Court from 70 to 65, thereby automatically landing one-third of the judges on the way out, unless granted an extension of their term by the President who exercised sole discretion in this regard.
The discretion exercised by the Prime Minister when appointing members of the judiciary was “more extensive and hence problematic,” the applicants argued, citing the opinion of Advocate General Tanchev in Commission vs Poland who declared that “Appearances are of a certain importance, so that ‘justice must not only be done, it must also be seen to be done.’ What is at stake is the confidence which courts in a democratic society must inspire in the public.”
Within the short lapse of six years, the PM had appointed 23 judges and magistrates, half of the current full judicial complement, six of which, meaning 13% of the total number, in one day, namely last Thursday.
Moreover, certain elevations of magistrates to judges “cast serious doubts” upon the exercise of such discretion, the applicants continued, mentioning three specific instances.
The first was the magistrate tasked with investigating the murder of Daphne Caruana Galizia, whose task had to be handed over to another magistrate, upon his promotion.
The second promotion was that of the magistrate who, less than a year ago, had conducted the inquiry against the Prime Minister himself.
The third instance concerned a magistrate who was soon expected to decide whether or not Karl Cini was to testify under oath about “the alleged involvement in corruption by the Prime Minister’s chief of staff”.
Such hasty appointments, “defying the recommendations of the Venice Commission” indicated “bad faith” on the part of the Prime Minister who appointed 13 per cent of the judiciary all in one go, the applicants continued.
Whilst acknowledging that the recommendations of the Venice Commission were not binding upon the State, they doubtlessly constituted “an authoritative and weighty opinion”.
As for the respondents’ plea that the applicants lacked juridical interest, the applicants countered that “this seemed to have become an easy escape route adopted by the Attorney General in Malta to shrug off State responsibility in cases involving fundamental rights,” as was the case in question.
In the light of such scenario, Repubblika was making a three-fold request: that the First Hall, Civil Court was to make a reference for a preliminary ruling by the ECJ; that this was to be handled with urgency; and to provide for interim measures until the ECJ ruling.
The reference was to focus upon whether the Prime Minister’s discretion breached the principle of independence of the judiciary; whether the Maltese courts were to declare such system as irregular and order its suspension pending change; to declare appointments made under current system as null and void; and, finally, that future appointments be blocked until a final decision on the merits of this case was taken.
The second act rebutted eight preliminary pleas raised by the respondents, with further oral arguments saved for the next hearing on Monday.
The two judicial acts were signed by lawyers Simon Busuttil and Jason Azzopardi.