Repubblika seeks ECJ opinion on new judicial appointments

Attorney General Peter Grech says Repubblika’s request opens up the State to ‘ridicule’ as civil society group asks constitutional court to seek European Court of Justice opinion

Simon Busuttil, acting as Repubblika's legal counsel, has asked the constitutional court to seek European Court of Justice's opinion on the appointment of Maltese judges
Simon Busuttil, acting as Repubblika's legal counsel, has asked the constitutional court to seek European Court of Justice's opinion on the appointment of Maltese judges

Judge Mark Chetcuti will deliver judgment at the end of the month on whether a case contesting the recent appointment of magistrates and judges should be referred to the European Court of Justice.

Chetcuti said any case involving the judiciary must not be left pending for weeks and months. “It must be decided either way,” he said at the end of a three-hour-long hearing.

The case was adjourned for judgment to 29 May.

The issue revolves around a constitutional case filed by civil society group Repubblika to stop the appointment of six members of judiciary pending changes to the method of appointment as requested by the Council of Europe’s Venice Commission.

Three magistrates and three judges were sworn in last week after the court refused to issue an injunction requested by Repubblika.

The case started being heard today, with Repubblika’s legal counsel Simon Busuttil asking for a preliminary reference to be made to the European Court of Justice, the request that this reference be handled with urgency and provide an interim measure to stop the newly-appointed judges and magistrates from being assigned their duties until the case is decided.

Making oral submissions in a lengthy afternoon sitting, Busuttil said Malta was the EU member state with the least number of preliminary references to the European Court - only three references were recorded over the past 15 years of EU membership.

Busuttil said ordinary citizens had a right to take their grievance before the national courts where they could ask those courts to affect a reference to the European Court requesting a preliminary ruling on some point of European law.

In this case, the reference was to focus upon whether the Prime Minister’s discretion in appointing the judiciary breached the principle of independence; whether the Maltese courts were to declare such system as irregular and order its suspension pending change; to declare appointments made under current system as null and void; and, finally, that future appointments be blocked until a final decision on the merits of this case was taken.

“It’s compelling to affect a reference. It’s crucial, if anything, for legal certainty,” Busuttil argued, questioning what would become of all judgments delivered by the newly appointed members of the judiciary if their appointment was to be annulled.

What would happen in the case of European Arrest Warrant proceedings, Busuttil went on. 

“Imagine sending a person to another country for prosecution when he ought not have been sent, or vice versa,” Busuttil said.

He argued: “What worse harm can there be than a Judge hearing a case when he should not have been a judge?”

Referring to the most recent appointments of 25 April – three judges and three magistrates all in one day – Busuttil argued that those were “abusive” and indicative of a “rush” on the part of government to fill all those places.

Request would open up the State to ‘ridicule’

AG Peter Grech has argued it would 'absurd' to base a reference to ECJ on an opinion that was not binding
AG Peter Grech has argued it would 'absurd' to base a reference to ECJ on an opinion that was not binding

Attorney General Peter Grech, representing the Prime Minister and the Justice Minister as respondents, said the case pivoted upon the discretion of government in the appointment of the judiciary.

The Venice Commission’s Report, although authoritative, was not binding and was only an opinion, Grech said, pointing out that it would be “absurd” to base a reference upon an opinion.

Opinions fell within the realm of the political process and the greatest danger in these proceedings was that a political issue was being discussed before the judicial fora, went on Grech.

Repubblika’s request for a preliminary reference was frivolous, lacked basis and if entertained would put open up the State to “ridicule”.

The Venice Commission had not made sweeping statements but had pointed out that the judiciary were to be appointed on their merits and without any undue influence in the process, Grech said.

As for arguments challenging the validity of such appointments, Grech remarked: “What if someone were to say that Malta’s independence was null, hence all appointments thereafter were to be annulled.”

The sitting was attended by several members of Repubblika as well as by the Justice Minister who listened attentively throughout the proceedings.

Lawyer Karol Aquilina also appeared for the applicant.

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