The appointment of the chief justice and judicial independence

The mechanism for the appointment of a chief justice is fundamental to maintaining judicial independence and public confidence in the judiciary. It follows, therefore, that the power of appointing someone to such an important office should not be vested exclusively in the executive government.

An important requirement of sustaining public confidence in the judiciary is the openness and transparency in appointing a chief justice who is, after all, a ‘primus inter pares’, that is to say, the first among equals who, consequently, has the power and authority to exercise control and oversight over his judicial peers.

Of course, openness and transparency in making appointments essentially depend on the mechanisms for appointment. The mechanism for appointment plays an important role in selecting the person having the professional skills and qualities that are required for a chief justice in an independent judiciary, more so considering that, based on our Constitution, a chief justice can be appointed from among practising lawyers who are not already serving judges or magistrates, albeit having to meet the legal qualifications of a judge, namely, at least 12 years of practice/service.

The whole system depends largely on the political culture and social values of our society.

Malta has adopted the two-thirds majority parliamentary approval mechanism to appoint the chief justice. Under this mechanism, the government initially selects the candidate for this supreme judicial office but makes a formal appointment only when the selection is approved by parliament.

Parliamentary approval provides a check on the power of the executive, and there is scope for public scrutiny of the appointment process.

Nevertheless, this system has some inherent defects. Firstly, parliament has nothing to do with the initial stages of selecting the candidate. Since the initial selection of a candidate is a vital issue in appointing the chief justice, and it is exclusively vested in the executive, this system may not be effective in controlling pre-eminent political or other irrelevant considerations in selecting a candidate for this judicial office.

Rather, it may foster an increasing tendency to introduce political bargaining. Secondly, although the requirement of approval by parliament may impose some restrictions on the discretion of the executive government, it may not be effective to change the basic form of ‘political infighting’.

Thirdly, if the party in power commands an overwhelming majority in parliament, political ‘patronage may still be a strong factor’ in appointing the executive’s preferred candidate. The parliamentary mechanism is transparent and open to public scrutiny, but if there is such a majority in parliament, nothing can be done, even if the public does not approve of the appointment.

The appointment of a chief justice is critical to judicial independence, as exclusive executive control can lead to the public’s perception of political bias and influence, undermining democratic principles. To ensure impartiality, appointments should ideally involve transparent, merit-based processes, such as independent judicial councils or consultation with the judiciary.

In our case, there has been an ongoing debate regarding the need for greater involvement of the judiciary in the appointment of the chief justice to align with Council of Europe recommendations.

As we saw in the run-up to the appointment of the last two chief justices, it was rare for any efforts to be made to consult with experts in the field, or even with the departing officeholders themselves, before a decision was made to nominate a candidate. This increases the risk of disagreement between the prime minister and the Opposition leader.

In order to maintain public confidence in the appointment system and to ensure judicial independence, I would dare to say that a commission system is perhaps a very effective mechanism for the judicial appointment of a chief justice. However, to ensure the effectiveness of this mechanism, the commission should be representative in nature, comprising members of the executive, legislature, judiciary, legal profession and laypersons. In addition, it should be ensured that the commission uses a system which is transparent and open to public scrutiny.