Chief Justice mulls EU court move

Chief Justice Silvio Camilleri has submitted an application to become Malta’s second judge in the General Court of the European Court of Justice, in Luxembourg.

If selected, Camilleri’s departure will open up a crucial vacancy for Malta’s judiciary – a sensitive post which observers say will also further determine the ‘colour’ of the institution, after Labour’s first appointments to the bench.

The Labour government has so far appointed a former candidate, Joanne Vella Cuschieri, former international secretary Joe Mifsud and Xewkija mayor Monika Vella as magistrates, and a former government whip, Wenzu Mintoff, as judge.

Silvio Camilleri, a former attorney general, was appointed chief justice in 2010 after Vincent de Gaetano was nominated to the European Court of Human Rights. He was an ‘outsider’ candidate catapulted to the top post without having been a member of the judiciary.

At 62, Camilleri is still three years away from official retirement as chief justice, which would have put him in good stead as successor of Malta’s sitting judge in the EU’s court of justice, Anthony Borg Barthet, who is expected to step down in 2018.

Instead Camilleri is seeking a nomination by the government for the ECJ’s inferior court, which mainly handles private cases. He will also have to get the green light from a panel of EU judges who will test his suitability for the post, particularly his experience in EU legislation.

The Court of Justice is composed of 27 judges and eight advocates-general, while the General Court is made up of at least one judge from each member state. 

Eugène Buttigieg is currently a judge in the General Court, serving his second mandate until 2019.

Following a decision to increase the number of judges in order to tackle a backlog of cases, each member state will have the right to nominate another judge.

EU judges are paid €220,000 a year excluding allowances. The addition of 28 new judges is expected to cost taxpayers about €23 million a year, an increase of 6.6 per cent over the €350 million annual budget of the Luxembourg court.

Current judge Anthony Borg Barthet was a former attorney general under whom Camilleri served. He was reappointed to the ECJ in 2006 for a six-year term, and again in 2012. A panel of experts had also turned down the nomination of judge Joseph Filletti for the General Court that same year.

All appointments are made after consulting a panel of retired ECJ judges and senior EU law experts, as well as the Court’s president, who give an opinion on candidates’ suitability. The workings of the Court of Justice are conducted in French and member states are expected to nominate persons with sufficient experience and knowledge to be able to perform their duty at European Union level.

Judges’ appointments: Bonello Commission ignored

The Chamber of Advocates has expressed concern at the new appointments of magistrates – two former Labour officials – in which the government disregarded the recommendations of the Giovanni Bonello Commission on the reform of the justice system, despite its apparent commitment to implement these recommendations. The proposal was originally mooted by Nationalist MP Franco Debono in a private members' motion of November 2011 on justice reform.

“The Bonello recommendations on the appointment of members of the judiciary are key in the overall reform to the justice system which the Chamber has on numerous occasions supported and continues to support. It is the implementation of those recommendations however, which sets the benchmark against which the government’s commitment to reform the justice system will be measured, and not the articulation of words of support,” the Chamber said. 

“When the opportunity to implement recommendations, which the government has expressed support to presents itself and is foregone, the level and intensity of the political will and commitment to carry out the reform is, with reason, questioned. 

“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. 

The commission for the holistic reform of the justice system, headed by former European Court of Human Rights judge Giovanni Bonello, had disagreed with the way judges are appointed in Malta, lamenting the lack of transparency in the selection process and having no fixed criteria of determining who is the person most fit for the post. 

The Bonello Commission proposed that it would be a specialised authority to make the selection process, while the government, as much as possible, acts according to the advice of that Authority when taking the final decision. 

The Anglo-Saxon system works by selecting lawyers in private practice and then carrying out a selection process by an independent commission that recommends the appointment of a judge to the executive. 

The Bonello Commission also proposed that lawyers who practise their profession in court be given preference. “A good judge must be well trained in procedural law and such experience gained by forensic practice.”

Council of Europe wants impartiality in judges’ appointments in Malta

Since 1994 the Maltese government has sought the advice of the Commission for the Administration of Justice in only two cases for the appointment of magistrates and judges – such appointments are the exclusive remit of the justice minister.

One of these was Andre Camilleri, whose appointment was shot down by the Commission for the Administration of Justice, for not having enough experience in court practice as per Malta’s law on judges, “notwithstanding his evident academic qualifications and professional track record in the international business law field”. 

In Malta judges and magistrates are appointed by the President upon the advice of the Prime Minister and enjoy life tenure till retirement at 65.

But the Council of Europe’s group of states against corruption (GRECO) has called for formalised, objective criteria and evaluation procedures to be introduced for judicial appointments in Malta.

It called for guarantees of “due independence, impartiality and transparency in the appointment of judges”, and for a compulsory induction training programme for new magistrates and the introduction of mentoring arrangements for new judges. 

Its latest report laments the lack of any formal appointment process, with no invitation to apply and no interviews being held. “The Minister for Justice makes the recommendation based on knowledge of the capabilities of the relatively small numbers qualified and practising,” the report said, however noting a trend during the past years to appoint female magistrates.

The report also noted that those appointed “had made it known to a politician that they were interested” and the widespread perception that judges are not appointed because of their “suitability” but for “reasons of influence”.