EU Court’s Advocate General finds no issue with Maltese judges’ appointment

In his Opinion to the European Court, AG Gerard Hogan says it is pointless to deny that politics has played a role in the appointment of judges in many legal systems, but insists that the mere fact that judges are appointed by a member of the executive does not in itself give rise to a relationship of subordination

The European Court of Justice has yet to rule on Malta's judicial appointments
The European Court of Justice has yet to rule on Malta's judicial appointments

Updated with government reaction at 4:25pm 

The Advocate General of the Court of Justice of the European Union has found no fault with the current system of judicial appointments in Malta, saying EU Law does not preclude national constitutional provisions under which the Prime Minister plays a role in the process of the appointment of members of the judiciary.

Civil Society activists Repubblika had sought a ruling by the European Court as to whether the current system of judicial appointments in terms of the Maltese Constitution was in breach of the Treaty of the European Union (TEU) and/or Charter of Fundamental Rights.

In his Opinion published this morning, ECJ Advocate General Gerard Hogan concluded that the mere fact that judges are appointed by a member of the executive does not in itself give rise to a relationship of subordination of the former to the latter or raise doubts as to the former’s impartiality, if, once appointed, they are free from influence or pressure when carrying out their role.

He noted additionally that it would be pointless to deny that politics has played a role in the appointment of judges in many legal systems, including those in many Member States.

The Advocate General’s Opinion is not binding on the Court of Justice and the AG can only propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the Court are now beginning their deliberations in this case and judgment will be given at a later date.

In a note filed before Mr Justice Mark Chetcuti in October 2019, Repubblika had explained that the current system gave the Prime Minister “arbitrary discretion,” was not subject to “clear and objective rules or criteria” and was lacking any need for explanation or motivation nor subject to any judicial authority. 

The Court had not heard evidence to decide whether or not the reference was necessary, and the judge held that for the purposes of this reference, which is of a legalistic nature, no evidence needed to be heard.

By its first question to the Court of Justice, the Maltese court sought to establish whether the second subparagraph of Article 19(1) TEU and Article 47 of the Charter must be considered to be applicable when a national court is assessing the validity of a procedure for the appointment of judges such as that provided for by the Maltese Constitution.

 READ ALSO: Repubblika asks court to block judicial appointments

The court also asked whether the aforementioned provisions must be interpreted as precluding national legislation under which the executive power, in this case the Prime Minister, enjoys a discretionary and decisive power in the process of the appointment of members of the judiciary.

Thirdly, the referring court asked whether in the case where the power of the Prime Minister is found to be incompatible with Article 19 TEU, this fact should be taken into consideration with regard to future appointments or whether it should also affect previous appointments.

In his Opinion, Hogan noted that the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter, is applicable when a national court is assessing the validity of a procedure for the appointment of judges such as that provided for by the Maltese Constitution.

He concluded that the Article does not preclude national constitutional provisions under which the executive power or one of its members, such as the Prime Minister, plays a role in the process of the appointment of members of the judiciary.

The Advocate General also found that the procedure for the appointment of judges at issue in the present case cannot be called into question under Article 19(1) TEU, interpreted in the light of Article 47 of the Charter, in support of claims introduced before the date of the forthcoming judgment.

Hogan noted that the Venice Commission’s Opinion No 940/2018 stated that the constitutional amendments of 2016, which introduced the Judicial Appointments Committee, were a step in the right direction, but fall short of ensuring judicial independence and that further steps were required.

According to him, the Venice Commission’s Opinion may be said to reflect recommendations in respect of a more complete system of transparency and a merit-based judicial appointment system.

“But while these may in themselves be desirable recommendations, the fact that the Maltese system does not fully meet these standards does not in itself suggest that Maltese judges do not, both in theory and in fact, enjoy guarantees of independence sufficient to satisfy the requirements of Article 19 TEU.”

Hogan noted that neither EU law nor, for that matter, the ECHR impose any fixed, a priori form of institutional guarantees designed to ensure the independence of judges.

What is important, he said, is that, first, judges must be free from any relationship of subordination or hierarchical control by either the executive or the legislature and, second, judges must enjoy actual guarantees designed to shield them from such external pressures.

“In these circumstances, it is only if one of these aspects of the procedure for the appointment of judges were to present a defect of such a kind and of such gravity as to create a real risk that other branches of the State – in particular the executive – could exercise undue discretion via an appointment which was contrary to law, thereby undermining the integrity of the outcome of the appointment process (and thus giving rise in turn to a reasonable doubt in the minds of individuals as to the independence and the impartiality of the judge or judges concerned), that the appointment procedure in question might be contrary to Article 19(1) TEU.”

The Advocate General therefore concluded that the procedure for the appointment of judges in Malta cannot be called into question, in support of claims introduced before the date of the forthcoming judgment.

Government reaction

The Maltese government welcomed the attorney general's opinion, adding that it justified government's argument that the judiciary in Malta enjoys complete independence.

"The opinion shows that the principles of rule of law in Malta are being implemented in practice, contrary to allegations and overseas campaigns that try to depict the country with a dysfunctional democracy," the government said.

"The Maltese government is committed to continue strengthening the reforms it has implemented to ensure rule of law and good governance prevail," the statement read.

Repubblika reaction

Civil society NGO Repubblika has said Hogan’s conclusion departs from previous pronouncements made by the ECJ on the independence of the judiciary.

"Repubblika hopes that the final decision handed down by the European court, which is expected in a few months’ time, follows the same steps as previous judgments," the NGO said.

It added that the action it took has achieved its purpose since it led to a radical reform in the country’s judicial system that was carried out over the summer.

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