Fighting for the judiciary’s independence

    Repubbika has filed a judicial protest and then a constitutional case in protest against the government’s decision to name new judges and magistrates under a system of appointments that clearly threatens the judiciary’s independence. The Courts accepted our request that this case is heard with urgency and the first sitting is on Monday.

    The Prime Minister decides alone

    The Venice Commission found that the way we choose our judges in Malta — that the Prime Minister alone gets to decide — may have been acceptable in the past but it is not consistent with what the world today expects democracies should be like.

    You can see why just by the last wave of appointments. Joseph Muscat promoted to judgeship Aaron Bugeja who a few months ago wrapped up the Egrant inquiry that could have caused Joseph Muscat a lot of grief. For all we know Aaron Bugeja is unimpeachably impartial. This is not about individuals. The fact is justice must be seen to be done and trusting the decision on which judges should be appointed or promoted to a single person means people cannot trust their institutions are protecting them.

    Consider the promotion of Francesco Depasquale. Can anyone be blamed  for thinking his promotion might have had something to do with the government needing to relieve him of the decision whether to force Karl Cini to testify on the 17 Black matter? To say nothing of Nadine Lia and her nepotistic proximity to the Prime Minister’s personal lawyer.

    Consider also that things have accumulated over time and not in a good way.

    System abused to the hilt

    In the last few years we have seen the appointment or promotion of a former Labour MP, a consultant on Joseph Muscat’s Cabinet, a former International Secretary of the Labour Party, a spouse of a Labour Party MEP, two former Labour Party candidates, the daughter of a former Deputy Leader of the Labour Party, two law office partners of former Deputy Leaders of the Labour Party, a former Labour Councillor, the daughter of a Labour Minister and the sister of another.

    This shows that a constitutional weakness we have had for a long time has now been abused to the hilt.

    The government had no choice but to acknowledge the Venice Commission is right and that changes are necessary. But it is going ahead with more nominations in the same pattern, by all accounts seeking to ensure that once the judiciary becomes autonomous in choosing new members, the judges and magistrates making those choices will ensure the protection of the Labour Party’s partisan interests in perpetuity.

    This is an outrage

    Our Constitution says Malta is to be a democracy. There is no democracy without judicial independence and the Venice Commission has found our system is a flagrant breach of judicial independence. This is why we argue the current state of affairs is not in conformity with the Constitution.

    The European Convention on Human Rights says we are entitled to fair hearing. There can be no fair hearing without judicial independence. This is why we argue today’s reality is a breach of our fundamental rights.

    The Treaty on European Union requires Malta to ensure that European law is impartially applied in Malta. Law cannot be impartially applied if the judiciary is not independent. This is why we argue the current state of affairs is illegal under European law.

    This is a landmark case. The chances of victory are slim but victory is not what motivates us.

    It is our duty to take this challenge on because the government appears comfortable paying lip service to the findings of the Venice Commission and to go ahead with its absorption of all institutions into the partisan and personal interests of Joseph Muscat.

    We must resist that and in the process invite the judiciary — guardians of the rule of law — to act in a way that protects their own independence, and by extension our basic freedoms.

    Robert Aquilina is the Secretary of Repubblika.