Watch: ‘A judiciary beholden to the government is not independent’

As long as the judiciary is controlled by the government, it would not qualify as “independent and impartial”, former human rights judge Giovanni Bonello has said.

Judge Emeritus Bonello, who was appointed to the European Court of Human Rights in 1998, was interviewed by about the proposed constitutional reform.

Read: ‘The Constitution works as is – if it is respected’ – Judge Bonello

The former human rights judge said that the Maltese Constitution is good as it is, if it is respected.

Asked about whether the Maltese judiciary on the whole would qualify as an independent judiciary under the European Convention of Human Rights, he said, “absolutely not”. He explained that as long as the judiciary is controlled by the executive, it would not qualify as “independent”.

The Constitution provides for the separation of power between the executive (the government), legislative (parliament) and the judicial. Each branch is given certain powers so as to check and balance the other branches. Each branch has separate power, and, generally, each branch is not allowed to exercise the powers of the other branches.

However, Judge Emeritus Giovanni Bonello observed that the Maltese judiciary is beholden to the Prime Minister. The Venice Commission in its legal opinion had observed that a lot of power is concentrated with the office of the Prime Minister. Bonello remarked that in Malta there is no separation of power, due to the way the Constitution is upheld.

“When you have a judiciary which is supposedly impartial and independent, but each magistrate and judge was appointed, because they pleased the prime minister, how can they be independent,” he asked, arguing that everything dependent on pleasing the Prime Minister. He remarked that while the principle was always the same, the difference lies in how the principle was applied.

He observed that while abuse did occur in the past, there were instances under Nationalist-led administration when those appointed to the bench, were labour politicians. He compared the situation to the present, saying that if there were 18 new appointments to the bench, “you could almost say that it is the Labour brigade”, adding that most of them were active within Partit Laburista and appointed to the bench by the same party in power.

“The change in how the magistrates and judges are appointed to the bench made the situation worse”

In a separate question about his fears if the Constitution reform does happen, the former human rights judge said that he feared that it would be a smokescreen, likening it to the changes in the appointments to the bench.

Bonello commented that the changes have actually made the situation worse. He said that while in the past, the Prime Minister chose and appointed new members of the judiciary to the bench, the situation now is that there is a sort of commission which would advise the Prime Minister, however ultimately the Prime Minister chooses whom to appoint to the bench.

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