Judicial Appointments Overhaul

Judicial Appointments Overhaul

29 July 2020

During yesterday’s parliamentary plenary session, the Constitution was amended unanimously. The amendments to the way in which judicial appointments are made have been praised by the President of the European Commission, Ursula von der Leyen. With the amendments following the advice of the Venice Commission, these aim to ensure further judicial independence.

What has changed

The appointment of judges proper and magistrates

Before, in accordance with Article 96(1) of the Constitution of Malta, members of the judiciary were appointed by the President on the advice of the Prime Minister after an evaluation is carried out by the Judicial Appointments Committee (JAC). Vacancies were not announced publicly and the JAC only confirmed that the candidate fulfils the criteria laid down by Article 96A of the Constitution. Currently, as per Article 96(4) the Prime Minister also had the ability to overrule the decisions of the JAC. The amendments are aimed at reducing the centralisation of power in the Office of the Prime Minister.

With the new law, the Prime Minister is no longer involved in the selection process. Article 96(1) will now give the President the power to appoint judges based on the recommendations of the JAC. Should the bill pass, when a vacancy arises, the JAC would recommend three candidates to the President of which the best would be chosen. The name of all candidates presented would be published with the President’s choice. The Minister responsible for justice shall issue a call whenever a vacancy arises and interested applicants may register their interest.

The composition of the JAC

Before, the Judicial Appointments Committee was composed of:

1. The Chief Justice
2. The Attorney General,
3. The Auditor General,
4. The Ombudsman, and
5. The President of the Chamber of Advocates.

It is perhaps worth noting that two out of the five current Committee members are chosen by a two third majority in Parliament (the Ombudsman and the Auditor General), whilst four out of the five members can be dismissed by a two thirds majority in Parliament (the Ombudsman, the Auditor General, the Chief Justice, and the AG). This means that only one out of the five members on the previous Committee, that is the President of the Chamber of Advocates, was not appointed or dismissed by any political majority.

The amendments to the composition of the JAC aim to inspire greater public confidence in the Committee. The newly approved composition of the JAC is as follows:

1. The Chief Justice
2. Two judges elected by their peers for a tenure of four years
3. One magistrate elected by their peers for a tenure of four years
4. The Auditor General
5. The Ombudsman
6. The President of the Chamber of Advocates

The addition of members of the judiciary not only ensures that the judiciary has a say over its new members, but it effectively means that half of the members of the Committee will be members of the judiciary. This pushes the judiciary further away from reliance on the executive to perform their duties. It also ensures less influence of the Prime Minister and the Executive branch over the individuals to be called to the bench.

The appointment of the Chief Justice 

            The Chief Justice used to be appointed as every other judge is, by the President acting on the advice of the Prime Minister. The new law holds that the President shall now act on the advice of a ⅔ majority in the Maltese House of Representatives. The law also provides for an anti-deadlock mechanism simple to that used in Italy.