Judicial appointments case: Simon Busuttil confident of NGO victory

Former Leader of the Opposition Simon Busuttil has told a court of appeal that he was ‘confident’ that NGO Repubblika would ultimately win the case it filed seeking to nullify judicial appointments until the recommendations by the Venice Commission on the rule of law are implemented.

“I’m confident I would win this case in [the European Court of Justice],” said Dr Simon Busuttil, who is assisting Repubblika together with Dr Jason Azzopardi, in his final submissions in the case filed by the NGO against the prime minister and the justice minister.

Busuttil referred to urgent legal action the group had filed in April in a last-ditch attempt to stop the appointees’ swearing-in. “We had filed an action before the latest appointments but the government, in defiance of all, went ahead with the swearing-in ceremony,” Busuttil said.

Four weeks later, Mr Justice Mark Chetcuti, presiding over the First Hall of the Civil Court, declared that Repubblika did not have juridical interest in the issue under Maltese law, but postponed a decision to refer the case to the European court, saying he would tackle the issue at a later stage.

A week later, the same court upheld both parties’ request to appeal, declaring that such a ‘sensitive’ issue merited direction from the Constitutional Court, stressing that the appeal should be handled ‘with urgency’.

Busuttil drew parallels with a judgment from last June by the European Court of Justice in Commission vs Poland, which resulted in the removal of 27 judges, saying that although this dealt with the Polish president’s powers to extend a judge’s term of office, the Maltese prime minister had done more than that.

“One might argue that this was Poland, not Repubblika. But the subject matter is the same. We cannot ignore EU law,” said the former Nationalist Party leader.

Busuttil argued that the Constitutional Court itself had provided proof of the validity of Repubblika’s claims in its decision to turn down a challenge calling on Chief Justice Joseph Azzopardi to abstain from presiding over the case.

The court declared that the chief justice, as president of the Judicial Appointments Committee, made recommendations to the prime minister, who held “final discretion” on the selection. The prime minister had the power to overrule the committee’s recommendations and appoint persons not approved by it, as long as reasons were given for this, the court had said.

“That is precisely what we are saying. The prime minister enjoys a terrifying amount of discretion,” Busuttil said. He claimed that the current system of judicial appointments was causing ‘serious and irreparable harm’ to the EU legal order and was not limited to Malta.

Attorney General Peter Grech, for his part, argued that it was premature for the case to go before the European court as it had not yet been decided at the national level.

The judicial appointments system had been in place since Malta gained Independence from the United Kingdom in the 1964, Grech said, questioning why it should now be challenged.

Describing the case as having ‘judicial and political overtones’, he added that a person who did not have ‘victim status’ had no right to institute it.

The court will deliver its final judgment in September. Chief Justice Azzopardi, Mr Justices Giannino Caruana Demajo and Noel Cuschieri are presiding.