Giovanni Bonello: Malta only country with ‘outdated, archaic and totalitarian system’ of appointing magistrates

Chamber of Advocates: problems with new magistrates the result of government’s refusal to change the way judges are nominated and chosen

Judge Giovanni Bonello, with justice minister Owen Bonnici in the background.(Photo:Ray Attard)
Judge Giovanni Bonello, with justice minister Owen Bonnici in the background.(Photo:Ray Attard)

The former European Court of Human Rights judge who drew up a reform to the judicial system of appointments that the new Labour government itself had requested, has condemned the “archaic and totalitarian system” by which members of the judiciary are still being appointed in Malta.

Bonello, chair of the justice reform commission, said that Malta was the only democratic country where judges and magistrates were not appointed following a public call.

The Bonello commission had proposed a public call and serious scrutiny of applicants’ competence by an independent authority before any appointments to the judges’ bench.

“Malta is the only country in the democratic world where judges and magistrates are still chosen at the whim of a political minister. I don’t think we should be proud of retaining this unique and negative record,” Bonello told MaltaToday.

“The Commission I chaired, together with my valid colleagues, was unanimous in condemning this outdated, archaic and totalitarian system. We instead proposed a more accountable, fair and transparent system similar to that adopted in the UK.”

The Cabinet’s recent endorsement of lawyers Ingrid Zammit Young and Caroline Farrugia Frendo is now marred in controversy: Zammit Young, 43 is the chair of the Employment Commission – a position which automatically eliminates her from the eligible list according to the Constitution; while Farrugia Frendo, daughter of Speaker Anglu Farrugia, is still a month away from meeting the seven-year law practice criteria.

But the cynicism of holding Farrugia Frendo’s oath of office until after March just so fulfills the seven-year threshold for magistrates, will not go unnoticed. The absurd conclusion is that the government can select preferred lawyers who graduated just two years ago, and nominate them in five years’ time, making a mockery of the Constitution’s requisites for judicial appointments.

Article 120(4) of the Constitution forbids any member of the Employment Commission from holding any public office before three years have passed from the last day of their office – a guarantee of independence for them to carry out their functions in the Employment Commission.

But Prime Minister Joseph Muscat has submitted to the President of the Republic, Marie Louise Coleiro Preca, that the definition of public office does not necessarily include judicial appointments.

What does the Constitution say?

Judge Bonello said that Article 100 of the Constitution specifies the minimum conditions for the valid appointment of magistrates.

One is that the person designated should have practiced as an advocate in Malta for at least seven years.  “The seven years requirement is an objective criterion, not subject to interpretation,” Bonello said. “There may be some margin of interpretation as to what practicing as a lawyer implies. The main traditional function of a lawyer is court litigation, and if that is not prominent in the curriculum, I do not believe the requirement of the Constitution is respected.”

Bonello added that the requirement is not capricious: “A Magistrate deals almost exclusively with court litigation, so it is very reasonable for the Constitution to require seven years practical experience in court litigation.”

Bonello also said that all bona fide lawyers who have at least seven years’ court experience, and are not precluded from the post by express constitutional impediments – like having held an incompatible public office – are eligible.

Chamber disappointed

The Chamber of Advocates said the problems concerning the nominations of members of the judicature had been a direct consequence of the government’s refusal to change the manner in which judges are nominated and chosen.

“With an adequate scrutiny, which is not conditioned by any external pressures or considerations, all this would not have happened, and the recommendations made would be based not only on competence but also on the qualifications established in the law,” president George Hyzler said.

The Chamber of Advocates was also disappointed that the practice used in the past, whereby the president of the Chamber of Advocates was consulted before nominations were effected, was not being followed. “This practice in itself, was also an instrument whereby any controversial nominations could be avoided. We cannot but question the reason why the Commission for the Administration of Justice was requested to give an opinion, now, after the nominations were announced, when it is clear that the Commission for the Administration of Justice cannot in any way vary what is written in the Constitution and cannot in any way repair the damage done.”

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