European Court of Justice hears Repubblika submissions on Maltese judicial appointments

Lawyer Jason Azzopardi has made submissions to the European Court of Justice in a case filed by NGO Repubblika, in which it is challenging the system of Maltese judicial appointments.

The EU’s Advocate General will deliver his opinion on December 17 after hearing legal submissions by Repubblika.

In December 2018, the Venice Commission had published its report on Malta, in which it criticised, amongst other things, the independence of the judiciary. After this report was published, Repubblika had filed a judicial protest demanding that the Prime Minister cease and desist from making further judicial appointments until the system of judicial appointments changes.

The Maltese Government was attempting to mislead the ECJ, Azzopardi said, when it claimed not to have been told to stop appointing members of the judiciary in April 2019. In fact, it had the Venice Commission report and the European Commission’s country report in February 2019.

“In the case before you, the executive power - the absolute discretion of the Prime Minister to appoint members of the judiciary- was not subject to substantive conditions and procedural modalities that limit the discretion in such a way as to avoid doubt about the impermeability of the independence of the judiciary,” Azzopardi told the ECJ this afternoon.

“Unbridled discretion, without brakes is illegal,” emphasised the lawyer.

“There was nothing holding the Prime Minister back in April 2019,” Azzopardi said. “There were no controls, no limits or scrutiny. No Judicial review. He could make appointments and promotions in the judiciary without condition or procedure” - a requirement established by the ECJ’s previous rulings.

The appointments created a structural dependency on the person who made them, the Prime Minister, argued the lawyer, “He alone would decide. And on 25 April 2019 he intentionally abused his discretion.” This fact had been confirmed by the Maltese Court of Appeal in 2019, in another case on similar merits, filed by Republlika asking for the recusal of the Chief Justice- as the president of the Judicial Appointments Commission, he said.

But last July, the system of judicial appointments had radically changed - thanks in no small part to Repubblika’s lawsuit-  with the Government amending the constitution to shift the discretion on judicial appointments from the Prime Minister to the Judicial Appointments Committee and the President of the Republic.

“So from a system of appointments completely in the hands of the Prime Minister, now we have a system where the Prime Minister has absolutely no power or say.”

“A few days ago the Venice Commission issued an additional opinion where despite finding some defects in the new system, welcomed the July 2020 changes as having finally rendered the system in Malta in conformity with the principle of independence of the judiciary.”