Updated | PM’s power to select short-listed judges not against EU law, Court decides

Repubblika case on judicial selection: European Court of Justice says power of prime minister to recommend judges identified by independent commission, to President not against EU law

Updated at 11:00am with Justice Minister reaction

The European Court of Justice has decreed that the prime minister’s power to select candidates for the judiciary short-listed for eligibility by an independent commission, was not contrary to EU law.

The ECJ’s decision, on a request by civil society group Repubblika, was taken on powers previously held by the PM before a subsequent reform entrusted the entire selection process to both the Judicial Appointments Committee and the President of the Republic, as head of the Commission for the Administration of Justice.

Previously, the prime minister could select the candidates for the judiciary from a list provided by the JAC, which he would then forward to the President.

But Repubblika’s bid to stymie the appointment of four new judges in April 2019 by protesting the PM’s power to select the preferred candidates from the JAC’s shortlisting, was not found to be contrary to EU law.

“EU law does not preclude national constitutional provisions such as the provisions of Maltese law relating to the appointment of members of the judiciary. It does not appear that those provisions might lead to those members of the judiciary not being seen to be independent or impartial, the consequence of which would be to undermine the trust which justice in a democratic society governed by the rule of law must inspire in individuals,” the ECJ declared.

The Court found that Malta’s judiciary had legal guarantees that dispelled any doubt as to the independence of its members, or the prospect of any outside political influence.

The Court indeed said that the creation in 2016 of the Judicial Appointments Committee had served to reinforce the guarantee of judicial independence in Malta, in comparison with the situation arising from the constitutional provisions which were in force when Malta acceded to the EU.

It recognised the JAC rendered more objective the process for appointing members of the judiciary, “by circumscribing the leeway available to the Prime Minister in the exercise of the power conferred on him or her in that regard, provided that that body is sufficiently independent.”

It said that although the PM in 2019 had a certain power in the appointment of members of the judiciary, “the exercise of that power is circumscribed by the requirements of professional experience, laid down in the Constitution, which must be satisfied by candidates for judicial office.”

And although the PM could submit to the President the appointment of a candidate not put forward by the JAC, the prime minister still had to communicate his or her reasons to the legislature. “According to the Court, provided that the Prime Minister exercises that power only in exceptional circumstances and adheres to strict and effective compliance with the obligation to state reasons, that power is not such as to give rise to legitimate doubts concerning the independence of the candidates selected.”

In a reaction to the decision, Repubblika pointed out that it was a pyrrhic victory for the government, as the system had changed regardless. “For the first time, activism worked and got the system we wanted,” a spokesman told the MaltaToday.

Following the appointment, in April 2019, of new members of the judiciary, Repubblika brought a case before the First Hall of the Civil Court, sitting as a Constitutional Court, challenging the procedure for the appointment of members of the Maltese judiciary, as governed by the Constitution.

The constitutional provisions concerned, which had remained unchanged from the time of their adoption in 1964 until a reform in 2016, confer on the Prime Minister the power to submit to the President of the Republic the appointment of a candidate to such office. In practice, the Prime Minister had then a decisive power in the appointment of members of the Maltese judiciary, which, according to Repubblika, raised doubts as to the independence of those judges and magistrates.

Nevertheless, the candidates must satisfy certain conditions, also laid down by the Constitution, and, since the 2016 reform, a Judicial Appointments Committee has been established, which is charged with assessing candidates and providing an opinion to the Prime Minister.

The system has since been reformed, doing away with the need for the Prime Minister to select the candidates.

Justice Minister says process strengthened further

Justice Minister Edward Zammit Lewis welcomed the ECJ ruling, saying it illustrates "the importance" of the 2016 reform in the appointment of the members of the judiciary.

"The judgment shows that this reform, inter alia, the constitution of the Judicial Appointments Committee, limited the discretion of the Prime  Minister in the appointment of the members of the Bench and is a stronger guarantee of the independence and impartiality of the judiciary," he said.

Zammit Lewis added that the Abela Administration further strengthened this process by the amendments passed through parliament unanimously in July, 2020.

"This constitutes hard evidence that the Abela Administration is on the right track in the constitutional and institutional reforms conducted in the last 14 months," he said.