Issue link: https://maltatoday.uberflip.com/i/1363999
2 maltatoday | WEDNESDAY • 21 APRIL 2021 NEWS MATTHEW VELLA THE European Court of Justice has decreed that the prime min- ister's power to select candidates for the judiciary short-listed for eligibility by an independent commission, was not contrary to EU law. The ECJ's decision, on a request by civil society group Repubblika, was taken on powers previously held by the PM before a subse- quent reform entrusted the entire selection process to both the Ju- dicial Appointments Committee and the President of the Repub- lic, as head of the Commission for the Administration of Justice. Previously, the prime minister could select the candidates for the judiciary from a list provided by the JAC, which he would then forward to the President. But Repubblika's bid to stymie the appointment of four new judges in April 2019 by protest- ing the PM's power to select the preferred candidates from the JAC's shortlisting, was not found to be contrary to EU law. "EU law does not preclude na- tional constitutional provisions such as the provisions of Maltese law relating to the appointment of members of the judiciary. It does not appear that those pro- visions might lead to those mem- bers of the judiciary not being seen to be independent or im- partial, the consequence of which would be to undermine the trust which justice in a democratic so- ciety governed by the rule of law must inspire in individuals," the ECJ declared. The Court found that Malta's judiciary had legal guarantees that dispelled any doubt as to the independence of its members, or the prospect of any outside polit- ical influence. The Court indeed said that the creation in 2016 of the Judicial Appointments Committee had served to reinforce the guaran- tee of judicial independence in Malta, in comparison with the situation arising from the consti- tutional provisions which were in force when Malta acceded to the EU. It recognised the JAC rendered more objective the process for appointing members of the judi- ciary, "by circumscribing the lee- way available to the Prime Min- ister in the exercise of the power conferred on him or her in that regard, provided that that body is sufficiently independent." It said that although the PM in 2019 had a certain power in the appointment of members of the judiciary, "the exercise of that power is circumscribed by the requirements of professional ex- perience, laid down in the Con- stitution, which must be satisfied by candidates for judicial office." And although the PM could submit to the President the ap- pointment of a candidate not put forward by the JAC, the prime minister still had to communi- cate his or her reasons to the leg- islature. "According to the Court, provided that the Prime Minis- ter exercises that power only in exceptional circumstances and adheres to strict and effective compliance with the obligation to state reasons, that power is not such as to give rise to legitimate doubts concerning the independ- ence of the candidates selected." In a reaction to the decision, Re- pubblika pointed out that it was a pyrrhic victory for the govern- ment, as the system had changed regardless. "For the first time, ac- tivism worked and got the system we wanted," a spokesman told the MaltaToday. Following the appointment, in April 2019, of new members of the judiciary, Repubblika brought a case before the First Hall of the Civil Court, sitting as a Consti- tutional Court, challenging the procedure for the appointment of members of the Maltese judi- ciary, as governed by the Consti- tution. The constitutional provisions concerned, which had remained unchanged from the time of their adoption in 1964 until a reform in 2016, confer on the Prime Min- ister the power to submit to the President of the Republic the ap- pointment of a candidate to such office. In practice, the Prime Min- ister had then a decisive power in the appointment of members of the Maltese judiciary, which, according to Repubblika, raised doubts as to the independence of those judges and magistrates. Nevertheless, the candidates must satisfy certain conditions, also laid down by the Constitu- tion, and, since the 2016 reform, a Judicial Appointments Commit- tee has been established, which is charged with assessing candi- dates and providing an opinion to the Prime Minister. The system has since been re- formed, doing away with the need for the Prime Minister to select the candidates. Justice Minister says process strengthened further Justice Minister Edward Zam- mit Lewis welcomed the ECJ rul- ing, saying it illustrates "the im- portance" of the 2016 reform in the appointment of the members of the judiciary. "The judgment shows that this reform, inter alia, the constitu- tion of the Judicial Appointments Committee, limited the discre- tion of the Prime Minister in the appointment of the members of the Bench and is a stronger guar- antee of the independence and impartiality of the judiciary," he said. Zammit Lewis added that the Abela Administration further strengthened this process by the amendments passed through parliament unanimously in July, 2020. "This constitutes hard evidence that the Abela Administration is on the right track in the consti- tutional and institutional reforms conducted in the last 14 months," he said. PM's power to select short-listed judges not against EU law, Court decides