The European Court of Justice (ECJ) has ruled that the method used by Malta in 2019 to appoint members of the judiciary does not violate EU law.
The case was brought by Repubblika in April 2019 after the civil society group objected to the appointment of three judges and three new judges.
Repubblika had argued that no further judicial appointments should be made until a system of appointments was put in place that could ensure the independence of the judiciary. The case was eventually referred to the ECJ by Judge Mark Chetcuti.
In a ruling issued today, the court found that “EU law does not preclude national constitutional provisions such as the provisions of Maltese law on the appointment of members of the judiciary”.
“It does not seem that these provisions could result in members of the judiciary not being viewed as independent or impartial, with the result that it would undermine the trust that justice must create in a constitutional democratic society,” said individuals the court.
Malta changed its method of appointing judicial officers last year on the recommendation of the Venice Commission.
Previously, the government introduced a requirement that candidates must be screened by a judicial officer appointment committee. Previously, the power to appoint members of the judiciary was solely in the hands of the Prime Minister.
In reaching its conclusion, the Tribunal made a number of remarks, beginning with the fact that the European Union Treaties did not preclude national provisions that give the Prime Minister “decision-making power” in appointing members of the judiciary.
However, it added that this should be done on the basis of the recommendation of an independent body charged with evaluating the candidates and delivering an opinion to the Prime Minister.
It was stressed that the EU is made up of states that have “freely and voluntarily” committed themselves to the bloc’s common values, including the rule of law. Member States are obliged to ensure that these values are protected.
“A Member State cannot therefore amend its legislation, in particular as regards the organization of the judiciary, in such a way as to reduce the protection of the value of the rule of law,” added the courts. Member States should not adopt rules that undermine the independence of the judiciary.
Against this background, however, the court found that the establishment of the Committee for the Appointment of Judicial Officials in 2016 “on the contrary served to strengthen the guarantee of the independence of the judiciary in Malta” compared to the pre-2016 agreements.
“In this case, the court finds that there are a number of rules that appear to ensure this independence,” it said.
The courts also stated that while the prime minister had the power to appoint members of the judiciary, the exercise of that power was limited by the professional experience requirements set out in the constitution.
It was recognized that it was technically possible for the Prime Minister to bypass the committee and recommend names directly to the President, provided that he explained his reasons for doing so to Parliament. In this context, the court found that this power should only have been used in exceptional cases. In fact, the provision was never used.
In response to the decision, Repubblika noted that Malta had reformed its method of appointing judicial officers since the submission of the case. This was a gain for Republic’s activism. Without the civil society group, the government would never have reformed the system.
What do you think of the court’s decision?