Appointment, discipline and removal of members of the judiciary : a comparative analysis

Abstract

This dissertation sets out to examine the mechanisms by which members of the Maltese and Italian judiciaries are appointed, disciplined and removed from office. Both countries have had their methods thoroughly examined by analysing the relevant provisions of domestic law. The provisions encompassed in the Constitution of Malta, Code of Organization and Civil Procedure, Costituzione della Repubblica Italiana, as well as several other Italian laws characterise said analysis. The judicial bodies entrusted with significant roles within their respective judiciaries, namely the Commission for the Administration of Justice, Judicial Appointments Committee, High Council of the Judiciary and High School of the Judiciary are discussed by underlining their composition, functions and duties. By presenting the reader with a comprehensive approach towards the relevant procedures in both jurisdictions, this dissertation is followed by a comparative analysis. The comparative section provides for an account on the strengths and weaknesses of both systems, making reference to several international instruments such as Recommendation No.R(94)12, Recommendation CM/Rec(2010)12, the CCJE Opinion No.1 (2002) and the European Commission for Democracy Through Law’s Opinion CDL-AD(2018)028. The European Charter on the Statute for Judges has also been referred to. This dissertation concludes on several deficiencies in Malta’s mechanisms, mainly that of a high influence from the executive in both procedure as well as institutional composition. This results in non-compliance with European standards, highly disputed over the years and on several occasions even accused of breaching the Rule of Law on an international plain. Such comparative approach also concludes that the Italian system primarily characterised by public calls for examinations, traineeships and appropriate institutional composition are in line with said standards. Finally, after having discussed the merits and demerits of both systems, the author concludes this dissertation by providing several recommendations with the aim of enhancing the Maltese scenario.