Cabinet agrees President should have final say on judicial appointments

Judicial appointments will be made by the President under reforms being proposed by the government to fulfil recommendations made by the Venice Commission.

The decision to give the President the final say on appointments to the judiciary was taken by Cabinet yesterday after an initial exchange on proposals with the Venice Commission earlier this month.

The proposed reform, which also includes a change in the composition of the Judicial Appointments Committee (JAC) and the method of appointing the chief justice, will eliminate the possibility of having candidates appointed directly by the executive or the government vetoing a proposed candidate.

Justice Minister Edward Zammit Lewis listed the proposals in a letter he sent the Venice Commission

Justice Minister Edward Zammit Lewis this afternoon published a letter he sent the Venice Commission with the key reforms being considered by government. He described the wide-ranging reform proposals as "a historic step" for Malta.

Judicial appointments have been a contentious issue flagged as problematic by the Council of Europe’s Venice Commission in a thorough review it carried out of Malta’s legal and constitutional set up.

The reform will see the JAC proposing three likely candidates to the President, along with detailed reports on the suitability of the individual candidates. The President will then have the final say on the appointment.

Zammit Lewis said that the composition of the JAC, a constitutional body set up during the last administration to evaluate candidates for the judiciary, will be changed to include two additional judges and a magistrate chosen by their peers.

In this way, half of the committee will be composed of members of the judiciary as suggested by the Venice Commission.

The chief justice, who presides the JAC, will also be given a casting vote apart from his original vote.

Under the proposed reforms, the chief justice will be appointed through a two-thirds parliamentary vote.

Other reforms include a cap on the number of persons of trust, curbing the prime minister’s power to appoint members to independent boards and changes to the Permanent Commission Against Corruption.

However, the government said that any change to the manner by which the President is chosen, will only be taken after wide consultation in the Constitutional Convention that the President will preside over.

KEY REFORMS

Judiciary

• A rolling public call will be retained for vacancies in the judiciary that will allow candidates, from inside and outside, the judiciary to apply.
• Composition of the Judicial Appointments Committee will now include two additional judges and a magistrate chosen by their peers.
• Public prosecutor will no longer form part of JAC and will instead be replaced by the State Advocate.
• Chief Justice will continue to preside over JAC but will also be given a casting vote in addition to his original vote.
• The JAC will propose the three most suitable candidates for appointment directly to the President, accompanied by detailed reports.
• Final choice of judiciary will rest with the President.
• Chief Justice will be appointed through the support of two-thirds of the members of parliament.

Judicial discipline

• Public prosecutor will be removed from the composition of the Commission for the Administration of Justice and replaced by the State Advocate.
• Judicial discipline, short of removal, will be the prerogative of the Commission for the Administration of Justice and the decision will be subject to appeal before the constitutional court as recommended by the Venice Commission.
• Authorities have not yet reached a final decision on the most appropriate and best way forward to impeach a member of the judiciary.

Prosecutions

• Changes will see Attorney General responsible for prosecutions of those offences that carry a punishment of more than two years.
• The right for judicial review of decisions not to prosecute by the Attorney General will be introduced. This will include the right for judicial review of the AG’s decision to prosecute before a particular court. Civil courts will have the authority and jurisdiction to annul the AG’s decision not to prosecute.

Permanent Commission Against Corruption

• Chairperson will be appointed by the president in accordance with a resolution of parliament supported by the votes of not less than two-thirds of MPs.
• Two remaining members will be appointed by the President on advice of Cabinet after consultation with Opposition leader.
• Any report containing a finding of corrupt conduct will be transmitted directly to the public prosecutor rather than the minister.

The proposed reforms will also curb the prime minister's unfettered powers to appoint members to independent commissions

Prime minister’s powers

• Power to appoint members to independent commissions will shift from the Prime Minister to the Cabinet of Ministers.
• Appointments of other high-ranking officials, including members of the Employment Commission, the governor, deputy governor and directors of the Central Bank, the chairperson of the MFSA and members of the Arbitration Centre, will also be made by Cabinet.
• Appointment of Data Protection Commissioner by Cabinet will be made after consultation with Opposition leader.

Perm. secs

• The Public Service Commission will make recommendations to the President for the appointment of permanent secretaries on the basis of clear and pre-established requirements and after due consideration to recommendations made by Principal Permanent Secretary.
• Principal Permanent Secretary will be appointed by President acting on advice of the Cabinet after consulting with PSC.

Persons of trust

• Legal changes will establish a clear legal basis for the appointment of persons of trust.
• These will limit engagements to consultants to ministers or parliamentary secretaries, staff in secretariats and appointments of a temporary nature whenever a post remains vacant after repeated public calls are issued.
• Legal changes will also establish maximum number of persons that may be engaged as persons of trust.

Appointment of President

• The appointment method of the President will only be decided after the Constitutional Convention is concluded.