‘Serving of justice a miracle in such a flawed appointment system’ - Giovanni Bonello

It is a miracle in Malta that justice can be served at all within such a flawed system of appointing judges, according to former European Court of Human Rights judge Giovanni Bonello.

“I believe Malta to be the only country in the democratic world where the judiciary is appointed at the sole and unfettered whim of the politicians,” Bonello told MaltaToday.

“No other democratic country in the whole world accepts this shambles of a system for the appointment of its judiciary.

“The method of selection, coupled with the de facto impossibility of firing or disciplining those members of the judiciary who fail in their duties, make the proper administration of justice in Malta a daily miracle.”

Malta’s judicial appointments system was recently criticised by the Council of Europe’s anti-corruption watchdog GRECO.

In a damning report, the watchdog noted the lack of a formal appointment process, with no invitation to apply and no interviews held. They warned that this has led to a widespread perception that judges are not appointed because of their “suitability” but for “reasons of influence”. 

Bonello had headed a Justice Reform Commission which suggested in a 2013 report that judges be nominated by the Commission for the Administration of Justice – a body composed of the President, the Chief Justice, the President of the Chamber of Advocates, two elected judges, two elected magistrates, a member appointed by the Prime Minister, and a member appointed by the Opposition leader.

“We made it very clear that the political system of appointing the judiciary is untenable, inherently subject to abuse and likely to lead to disappointing or abhorrent results,” Bonello said.

The Bonello report was largely based on proposals included in a private member’s bill by current Law Commissioner Franco Debono that had been shelved by the previous administration.

“The separation of executive and judiciary powers is crucial in a democracy,” Debono told MaltaToday. “Indeed, one of the main functions of the judiciary is to act as a system of checks and balances over the government. However, current judicial appointments depend exclusively on the good grace of the justice minister.”

He argued that this system could create a sense of obligation by members of the judiciary to the government, which could be damaging for this separation of powers.

Justice Minister Owen Bonnici has pledged to give “proper consideration” to the 450 recommendations of the Bonello report in drawing up a Bill on judicial reform. However, he warned that a shifting of powers to the Commission for the Administration of Justice would not be a magic bullet.

“Seeking the Commission’s advice before making judicial appointments is something worth considering, although one cannot be over optimistic that this will eliminate skepticism about judicial appointments,” Bonnici said. “Judges have in general always behaved independently, irrespective of who appointed them, and history has proved that quite clearly.”

However, recent judicial appointments have certainly raised a few eyebrows. Following the appointment as magistrates of former Labour international secretary Joe Mifsud and former Labour mayor Monica Vella, the Chamber of Advocates expressed concern that the Bonello recommendations were disregarded.

“Inadequate regard to important institutional recommendations aimed at enhancing credibility in the judicial system continues to undermine public confidence in the current judicial system,” the Chamber said.

Unsurprisingly, a lot of criticism of late has come from the Opposition benches.

“Not even [former Prime Minister] Dom Mintoff had made such partisan and divisive appointments to the Bench,” shadow justice minister Jason Azzopardi lamented.

“Do you honestly believe that someone coming from the PN and who is having his case heard by some of these manifestly partisan appointees to the Bench will believe that justice will be seen to be done in his case?

“Do you honestly believe that a lawyer hailing from the PN can serenely appear before a Judge and believe that his client will get a fair hearing, when that Judge was until a few months ago writing ruthlessly disparaging and excoriating criticism, even on a personal level, against PN MPs?

“In order for the Labour Party to exert control over the justice sector, instead of implementing the Bonello recommendations, the government has rushed to appoint some individuals to the Bench on whom it may discreetly lean on when push comes to shove in the future.”