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MALTATODAY 5 December 2021

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4 maltatoday | SUNDAY • 5 DECEMBER 2021 NEWS Court to consider lawyer's challenge against four judges MATTHEW AGIUS A judge has declared admissible one of three arguments put for- ward by one of Yorgen Fenech's lawyers, who is challenging the recent appointment of four judg- es. Lawyer Anna Mallia qualified for "victim status" vis-a-vis her human rights, in a constitution- al claim arguing that the Judicial Appointments Committee's rec- ommendation of the candidates should be declared null and void. In the recent public call for ap- plications for the post of judge, one of the applicants was Magis- trate Gabriella Vella, who already had a seat on the J.A.C. Vella abstained from the board and did not participate in the in- terviews of the other applicants, and instead only sat for her own interview. As a result, it was decided that the interviews for candidates take place without a magistrate pres- ent. Mallia is arguing that the com- mittee should have brought up this issue before proceeding with the selection process, in order that the magistrate concerned could step down to be replaced by another magistrate. Instead, the committee had laid out its own rules, thereby circumvent- ing the Constitution, Mallia said. The Constitution provides that the J.A.C. be composed of the Chief Justice, two elected judg- es, one elected magistrate, the Auditor General, the Ombuds- man and the president of the Chamber of Advocates. While the procedures are in place when the Chief Justice, the Auditor General, the Ombudsman or the Chamber president abstain or are challenged, there are no similar measures for other members on the committee. To deal with this shortcoming, the committee had set out rules and guidelines stating that if a magistrate sitting on the J.A.C. expressed an interest in becom- ing a judge, they would not par- ticipate in the process leading to the evaluation and decision on the eligibility for appointment. Mallia contends this meant that the committee that had decided the most recent judicial appoint- ments was one member short, and in violation of the Constitu- tion. Any decision made by the committee so composed must therefore be declared null and void, she insists. In a partial decision, Mr Justice Grazio Mercieca ruled that this claim was administrative and not constitutional in nature. Indeed, the judge said Mallia had failed to exhaust her ordinary remedies by not filing an action for judi- cial review of an administrative action, before taking the matter to a constitutional court. "If this is not done, it will lead to the ba- nalisation of constitutional pro- ceedings, which are supposed to be special, exceptional and meas- ures of last resort." Mr Justice Mercieca did, how- ever, find some merit in Mallia's argument that Article 96A of the Constitution, which regulates the J.A.C., is itself unconstitutional. "The request is therefore one of an alleged breach of fundamental rights which is not tied to judi- cial review of an administrative action. This court sees no reason for it not to consider this request as a valid and admissible one – without by doing so pronouncing itself, for now, about the plea of lack of juridical interest." Noting that the Constitution al- lowed individuals to begin court action over a right which poten- tially will suffer a breach or fun- damental rights, the court quot- ed Maltese constitutionalist and jurist J. J. Cremona: "The right to seize the court is granted also to any person who alleges that any of his protected rights is 'likely' to be contravened, which could cov- er also a reasonable probability that an apprehended action may take place. This is in a sense an interesting extension of the ordi- nary 'victim' concept." The judge observed that the Eu- ropean Court of Human Rights in Strasbourg had also applied a wide interpretation of potential victimhood in human rights cas- es, conducting a scholarly appre- ciation of salient judgments in this regard. He concluded that Mallia qual- ified for victim status in this re- gard, and the case will continue in January. Lawyer Anna Mallia says selection of four judges is unconstitutional because committee did not include magistrate who had stepped down to be an applicant for a judge's appointment

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