Repubblika asked the European Commission to look into whether Malta’s system of judicial appointments violates EU law. In its complaint Repubblika asked the Commission to examine whether the Prime Ministerial discretion to decide on judicial appointments is contrary to EU law.
Repubblika raised concerns about a number of provisions in the Maltese Constitution and their implementation by the government. Among the elements on which Repubblika focussed was that Maltese law grants to the Prime Minister unfettered discretion to appoint judges and magistrates to the judiciary without any form of judicial review. Repubblika said that such appointments are not subject to any limitations or objective criteria. It claimed that this “…state of affairs is in breach of the EU Treaty that forms the basis of EU law and sets out the general principles of the union.”
In the complaint to the Commission, Repubblika noted that in October 2018 EU Commission took Poland to the European Court of Justice for lowering the age at which Supreme Court judges are required to retire. Last June the European Court of Justice handed down a landmark judgment which ruled that Poland had breached EU law in the way it handled the judiciary, harming its independence.
Independence of Judiciary at risk?
In Malta, insisted Repubblika, the discretion of the Prime Minister is even wider and more unfettered than in Poland. “The independence of the judiciary in Malta is truly at risk” insisted Repubblika, adding that “Although the Constitution has been amended in 2016 to provide for the setting up of a Judicial Appointments Committee, its recommendations were merely consultative in nature and did not constitute any legally-binding obligation on the Prime Minister.”
Repubblika noted that the Prime Minister is also empowered to promote magistrates to the rank of judges under the same unfettered discretion afforded him by the Constitution. He has the power to appoint the Chief Justice unilaterally and to appoint retired judges to public office, such as to head public institutions.