Prime Minister’s selection of shortlisted judges not against EU law, court decrees

The European Court of Justice has decreed that the Prime Minister’s power to select candidates for the judiciary which are short-listed for eligibility by an independent commission is not against EU law.

The decision, which came after a request by civil society group Repubblika, was focused on powers which the Prime Minister held before a reform which entrusted the entire selection process to the Judicial Appointments Committee and the President of the Republic.

Previously, the Prime Minister could select the candidates from a list provided by the Judicial Appointments Committee which he would then forward to the President.

“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 court 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.

It recognised that the creation of the committee in 2016 had reinforced the guarantee of judicial independence in Malta in comparison with the provisions which Malta had when it acceded to the EU, and that the committee had made for a more objective process 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.”

Reactions

Prime Minister Robert Abela tweeted that the judgement had confirmed that the government is delivering what is right and that the government upholds rule of law in Malta. “It demonstrates that our reforms have been recognised and our judicial system has been effectively strengthened for the benefit of our citizens,” he said.

In a statement, Repubblika said that the fact that today judges are chosen without any intervention from the government is an important result of their activism and a victory for the country.

They said that Repubblika had won this case because through it, it had succeeded in its aim to change how Malta’s judiciary was appointed to a situation where they are appointed by independent institutions.

They said that the court had concluded that Malta was obliged to have an independent body to evaluate candidates and advise who should be appointed to the judiciary. “Before these reforms, which happened because of Repubblika’s case, this independent body did not exist,” the NGO said.

The Labour Party meanwhile said in a statement that the court’s decision confirms that the Nationalist Party’s attacks on the country’s institutions were unjustified. The PL said that former PN leader Simon Busuttil and current MPs Jason Azzopardi and Therese Comodini Cachia were at the forefront of assisting the opening of this case against the country, a case which has now showed that the country’s institutional reform has been ambitious and successful.