Law professor says judicial appointments were based on friends-of-friends criteria

Professor of Law at the University of Malta Kevin Aquilina said the selection of judges and magistrates was rarely if ever meritocratic over the years

Faculty of Laws dean Prof. Kevin Aquilina
Faculty of Laws dean Prof. Kevin Aquilina

Law Professor Kevin Aquilina said that the manner in which the judiciary has been appointed over the years has given rise to the friends-of-friends selection criterion, rather than one based on meritocracy.

The Dean of the Faculty of Law at the University of Malta was speaking to The Malta Independent.

"We see advocates being appointed judges and magistrates hailing from the political arena without any reasonable cooling-off period having elapsed since they last participated in politics," he said.,

Aquilina as reacting to comments made last week by former European Court for Human Rights judge Giovanni Bonello. Aquilina had even penned the forward to the latter's book Misunderstanding the Constitution: How the Maltese judiciary undermines human rights.

"In colonial times, we had a Prime Minister who appointed himself a judge and also a Minister responsible for justice appointed judge," Aquilina added.

In his view, the selection procedure does not reflect well on the appointees themselves who might, in fact, be people of integrity. But the perception is that they are political appointees who have been appointed not because they deserve to be but because they have managed to jump the queue through party allegiance.

"Any measures that are adopted to redress this matter, if any are after all adopted, will require at least two generations to come into effect," Aquilina pointed out. This situation has existed since 1964, he said, pointing out that - in the 55 intervening years - no drastic changes had been made.

Pointing directly to the current administration, Aquilina said: "It failed to implement those parts of the Bonello Commission report of 2013 that advocated these changes. Yes, we do get some tweaking here and there, but the end result remains the same: all the judiciary are political appointees and owe their appointment or promotion not to an independent judicial body, as is the case in democratic Europe, but to none other than the Prime Minister, that same person who is called upon by the citizen to review governmental actions."

When asked if he agreed with Bonello that many of the judiciary only rubber-stamp abuse by the powerful, Aquilina said: "When one reads judgments of the Constitutional Court and the Civil Court, First Hall (Constitutional Competence), one gets the impression that the judiciary is more positively receptive and accommodating to the might of the government than to the citizen's eternal fight for justice.

"Democracy and the rule of law have been problematic in Malta from when we gained independence in 1964 to date", Aquilina explains, adding that no government has, however, had the courage to take the bull by the horns and address these two issues.

"Once in Opposition", he continues, "both political parties pledge to right what is wrong but once in government, and the newly-anointed Prime Minister has taken his first step in the Auberge de Castille, he is affected by the virus of total amnesia, conveniently forgets electoral pledges, remembers that his is not a government of national unity and continues to follow the bad example set by his predecessor in government by ditching public offices on to the blue or red-eyed boys  and girls, depending on which political party is in government."

Aquilina pointed out that in Malta, essentially, public offices are not distributed on the basis of merit but on political party loyalty. He explains that this is because the winner takes it all and, once in office, he has to quench the thirst for blood of his supporters by handing out lucrative public appointments.

When asked by the Malta Independent journalist Rebekah Cilia on whether members of the judiciary owe their job, promotions and board appointments to the same person they are supposed to control, Aquilina said:  "It certainly causes a problem, perception-wise, if not in actual reality.

"No member of the judiciary can bite the hand that feeds him or her for the simple reason that he owes his position to the Prime Minister and it is the latter who decides whether or not he gets promoted.

"Essentially, they are at the mercy of the government. The whole appointment and promotion procedure, as long as it continues to be administered by the government, stinks."

Aquilina also said that he agreed with Bonello's assertion that Malta is the EU member state that most violates the European Convention on Human Rights.

We are at the rock bottom of those Council of Europe member states  that violate most of the European Convention on Human Rights and the problem is that this does not appear to bother successive governments", says Aquilina. "The judiciary also has a part to play because it is their judgments that are being overturned in Strasbourg." He went on to say that the judiciary is not affording an effective remedy so one can ask why waste endless time in Malta to find no remedy when this can be obtained more quickly before the Strasbourg Court.

More in National