Foundations of justice system in 'serious doubt' says Maltese judge in urgent reference to European Court

The European Court of Justice has been asked to urgently decide a reference in the case over judicial appointments filed by rule of law NGO Repubblika against the Government, with the referring court saying the issues put the edifice of the Maltese justice system in "serious doubt".

Mr Justice Mark Chetcuti, presiding the First Hall of the Civil Court in its Constitutional jurisdiction, made the urgent request in an order handed down this morning.

Earlier this year, Repubblika had filed a court case against the prime minister and the justice minister, seeking to nullify judicial appointments made before the government implemented the recommendations by the Venice Commission on the rule of law and the independence of the judiciary.

The appointment of six new members of the judiciary is being attacked by the NGO, which said that no new judges or magistrates should have been appointed until a revised system of appointments was implemented.

Last May, Mr. Justice Mark Chetcuti presiding the First Hall, Civil Court, had declared that Repubblika did not have the required juridical interest in the issue under Maltese law, but had postponed a decision about a reference to the European Court.

This decision has now been handed down this morning, with the court noting that it had denied a request for an interim measure in May.

Two identical appeals had been filed to the court’s refusal, one before the Court of Appeal and the other before the Constitutional court. The plaintiffs had asked for the recusal of the Chief Justice when the case was appointed, but this had been turned down. The appeals were decided in September 2019.

The plaintiffs said that it had been “objectively established” in the notes of submissions that the Prime Minister had almost unfettered discretion in the appointment of members of the judiciary and that this “did not give peace of mind and created doubts as to the disconnection of members of the judiciary from external factors what could impinge on their neutrality and independence.”
The Venice Commission had concluded that although steps were being made in the right direction, the Prime Minister should not have the power to influence the appointments of judges or magistrates as this “would open the door to potential political influence, which is not compatible with modern notions of independence of the judiciary.”

In a detailed judgment, in which Mr. Justice Chetcuti examined the applicable law and how it developed since 1964 to the present day, he listed the questions which the ECJ was being asked to answer.

The questions the court put to the ECJ are:

1. Whether the Constitutional articles dealing with the appointment of the judiciary are in line with Treaty of the European Union and the European Charter on Human Rights,

2. If so, whether the powers of the Prime Minister in the appointment process is in conformity with the European laws previously mentioned

3. If it is found that the Prime Minister’s powers are not in conformity with these laws, should this apply only to future appointments or also to past ones?”

The court also requested the European Court of Justice fast track this case, noting that the issue is not only one of public and national interest, but also places the foundations of the Maltese justice system, which depends on the outcome of this case, in serious doubt.

Lawyers Simon Busuttil and Jason Azzopardi appeared for Repubblika. Attorney General Peter Grech and lawyer Victoria Buttigieg appeared for the Government of Malta. Lawyer Joe Brincat was admitted as an intervenor to the case.