Constitutional lawyer: Retain judges’ nomination but add scrutiny to process

One of Malta’s most respected constitutional lawyers has suggested that the system of nominating magistrates by the government be retained, but strengthened with a system of scrutiny.

Prof. Ian Refalo, who frequently advises government and public bodies on administrative and constitutional law issues, has said that improving the system of nominating magistrates and judges should be “considered carefully” so as to retain the judiciary’s independence while addressing professionalism and capability.

The issue of the appointment to judicial office in Malta once again became a hot topic after Ingrid Zammit Young withdrew her a nomination to the judiciary, when the Commission for the Administration of Justice declared that a chairman of the Employment Commission "was possibly" constitutionally barred from the post of magistrate. The Constitution has a three-year blackout period on public office for members of the Employment Commission, a constitutionally-appointed body.

“The issue all arose out of an alleged nomination to judicial office which does not satisfy the parameters of the Constitution.

"I say alleged and underscore it because it seems to me the whole issue is debatable, and certainly there have been past chairmen of the Employment Commission who have made good judges; but certainly they did not fall within the parameters of any constitutional prohibition. It is after all not the first time round that we have seen a nomination to judicial office being refused in the light of expressed doubts of the candidate satisfying the Constitutional requirements,” Prof. Refalo said.

The same constitutional obstacle was indeed raised by Justice Minister Owen Bonnici, who told the CAJ during its hearing on Zammit Young, that Magistrate Francesco Depasquale was appointed two and a half years after he resigned a one-month tenure on the Employment Commission back in October 2008.

“The whole incident and the unnecessary focus on the definition of public office in the Constitution detracts from a more serious consideration of the issue of appointment to judicial office which certainly deserves a more considered treatment. My perspective is that there seems to be three generally acknowledged routes to the judicial office – electoral, by professional examination, and nominative,” Prof. Refalo said.

Malta has traditionally allowed government to nominate members of the judiciary. “For two centuries it may probably be said to have served Malta well. Can it be improved? Certainly and probably. But improvement comes by considering carefully what we desire to achieve and how best to retain independence and marry it with professionality and capability.

“This can be done even within the obtaining rules, with some slight adaptation, if we accept that the nomination may be subject to some form of scrutiny without pillorying the person making the nomination or the person nominated. Difficult but not impossible.”