Judicial independence in jeopardy
The reforms in the justice sector announced by Justice Minister Owen Bonnici last week are long overdue. This initial package of reforms includes splitting the roles of the Attorney General and honing criteria in law for persons-of-trust engagements, all recommendations made by the Venice Commission, the respected Council of Europe body that recommended measures to buttress structural weaknesses in Malta’s justice system and rule of law.
What the government has embarked on, however, are the more straightforward reforms, leaving the core cluster of recommendations on the appointment and removal of the judiciary to a later stage. The minister has not committed himself to any timeline for reform in this crucial area.
That means we remain saddled with the current system of judicial appointments – one that is deeply flawed. In the judgement of the Venice Commission and of justice grandees such as Faculty of Law dean Kevin Aquilina and Judge Emeritus Giovanni Bonello, this mechanism of appointments does not ensure judicial independence. When most other supposedly independent institutions have fallen in thrall to the government, it is indeed a worrying prospect that the last bastion of the rule of law is in danger of being drawn more deeply within its sphere of influence. This prospect is real when one considers the large number of political associates or cronies who have been appointed to the bench over the years.
This has the potential to mire the judiciary in endless controversy, in and out of the court room – as has already happened – and deal more blows to its perceived independence and trustworthiness.
Any discussion of these issues, however, has to start from the secretiveness of the Commission for the Administration of Justice and its organs, particularly the Judicial Appointments Committee (JAC), which assesses candidates for the judiciary, and the Committee for Judges and Magistrates (CJM), tasked with disciplining errant judiciary.
We know nothing of the operations of these two organs. If we had to have a modicum of transparency, for example, the CJM would serve to raise the standards of the judiciary and assuage people’s grumblings of abuses and unaccountability of the judiciary. Likewise, transparency by the JAC about its assessment criteria for candidates and promotions within the judiciary would instill confidence in the justice system.
The current practice is a vestige of the epochs of emperors: the JAC communicates in confidence to the Prime Minister the appraisal status of interested candidates, and the Prime Minister retains discretion in making selections without having to abide by the JAC’s recommendations. His decision is not subject to review or challenge.
An example of how secrecy undermines the system are the reports in various media outlets over several months of the impending appointment to the judiciary of Nadine Lia, daughter-in-law of Pawlu Lia, a personal lawyer of the Prime Minister, and other Labour Party figures and organs, as well as the Prime Minister’s appointee on the Commission for the Administration of Justice.
The reports have never been denied. Is she or isn’t she a nominee? If yes, has she been passed by the Judicial Appointments Committee? Until last week she was still apparently employed as the Regulator at the Family Business Office, which is connected to the government. When a reporter of this newspaper attempted to verify the reports and other information it has received concerning her professional practice, which could have a bearing on her selection, she maintained that she is a private [non-public] person who does not comment to the media.
The committee that vets candidates does not divulge anything about its proceedings. So the uncertainty remains: the secrecy surrounding Nadine Lia’s nomination to the bench, if such is the case, creates needless extra controversy. This sort of opacity only gives rise to an unhealthy atmosphere for the judiciary to operate in, further eroding trust in the justice system. Irrespective of her credentials and professional suitability for the bench, it would be damaging, in the present situation, to appoint her to the judiciary given the misgivings arising from her father-in-law’s roles and connections, as well as Dr Bonnici’s apparent commitment to meaningful reform in the system of appointments – whenever that is due.
This issue is, of course, larger than the one person. It would be cynical and disingenuous in the extreme for the government to commit to changing the system of appointments to make the judiciary more independent while in the meantime making more appointments that go against the spirit of its own public commitments. Over the next two to three years, five judges and a magistrate are due to be replaced, as well as the Chief Justice himself. Will those replacements consist of more Labour-friendly faces?
To retain public confidence in justice and avert possible challenges in the European Court of Human Rights in the future, the government must bring in a new system before appointing any new magistrates and judges, or at least adopt interim measures in practice that respect the spirit of judicial independence.
The Opposition has already publicly stated its immediate support for the Venice Commission’s recommendation in this regard, so this reform can be launched without delay.
This is a Times of Malta print editorial