Law faculty dean believes more autonomy needed in selection, removal of judiciary

Dean of the Faculty of Law Kevin Aquilina believes a more autonomous system for the appointment and removal of members of the judiciary in Malta, without any intervention of the executive.

Interviewed by The Malta Independent editor-in-chief Rachel Attard, he was answering a question related to calls for the removal of the Attorney General and the Police Commissioner, where on the one hand they are appointed by government but then cannot be removed by the Prime Minister. “In the case of an appointment, it is the Prime Minister who appoints. In the case of removal, Parliament removes an AG and the Public Service Commission removes the Police Commissioner.”

He then turned to the judiciary.

“Who really appoints members of the judiciary? The President on the advice of the Prime Minister. Since 2016, there is now a mechanism in place to scrutinise applications. Before that date there was no mechanism and the President appointed them directly on the advice of the Prime Minister. In April, Chief Justice Silvio Camilleri will retire.

“With the 2016 amendments the position remained the same, that there is no need for whoever will be appointed Chief Justice to go through the vetting process of the Judicial Appointments Committee. So it still remained in the hands of the Prime Minister to decide who is appointed Chief Justice, by giving advice to the President, who is Constitutionally tied to adhere to that advice.”

He mentioned the Bonello Commission report, “where we proposed changes to the appointments, discipline, training and removal of members of the judiciary.”

He drew attention to the removal of judges, highlighting that, “while we talk about 2/3rds Parliamentary majority, the EU Court of Human Rights has a number of judgements which state that Parliament cannot remove a member of the judiciary from their post, as Parliament is not a court or an independent and impartial tribunal. So if one removes a judge or magistrate from the bench, I am sure that if the judge or magistrate were to go to our courts or eventually the European Court of Human Rights and challenge his or her removal, Parliament would need to change the Constitution as it had to do when it had the Demicoli case, having to amend the Privileges and Powers Ordinance.”

Aquilina believes that Malta should move towards the continental system, “where judges are appointed by members of the judiciary themselves, where there is separation of powers and the executive does not interfere in the appointment, discipline, training or removal of members of the judiciary, where the judiciary regulate themselves.”