Court to consider lawyer Anna Mallia’s challenge against four judges

A judge has declared admissible one of three arguments put forward by one of Yorgen Fenech’s lawyers, who is challenging the recent appointment of four judges.

Lawyer Anna Mallia qualified for “victim status” vis-a-vis her human rights, in a constitutional claim arguing that the Judicial Appointments Committee’s recommendation of the candidates should be declared null and void.

In the recent public call for applications for the post of judge, one of the applicants was Magistrate Gabriella Vella, who already had a seat on the J.A.C.

Vella abstained from the board and did not participate in the interviews 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 present.

Mallia is arguing that the committee 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 circumventing the Constitution, Mallia said.

The Constitution provides that the J.A.C. be composed of the Chief Justice, two elected judges, one elected magistrate, the Auditor General, the Ombudsman 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 becoming a judge, they would not participate 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 appointments was one member short, and in violation of the Constitution. 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 judicial review of an administrative action, before taking the matter to a constitutional court. “If this is not done, it will lead to the banalisation of constitutional proceedings, which are supposed to be special, exceptional and measures of last resort.”

Mr Justice Mercieca did, however, 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 judicial 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 allowed individuals to begin court action over a right which potentially will suffer a breach or fundamental rights, the court quoted 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 cover also a reasonable probability that an apprehended action may take place. This is in a sense an interesting extension of the ordinary ‘victim’ concept.”

The judge observed that the European Court of Human Rights in Strasbourg had also applied a wide interpretation of potential victimhood in human rights cases, conducting a scholarly appreciation of salient judgments in this regard.

He concluded that Mallia qualified for victim status in this regard, and the case will continue in January.