An analysis of the current judicial appointment system in Malta : the legality, observance of democratic standards and the way forward

Abstract

This dissertation seeks to evaluate the advancements made to the judicial appointment system through Act XLIII of 2020 in relation to the previous judicial appointment systems and in the context of international and European perspectives. A qualitative approach is taken in analysing legal publications pertaining to the field and concepts emerging from opinions of stakeholders. In discussing the past judicial appointment systems, the study exposes the scepticism and distrust of domestic bodies, international bodies and experts in the field, including the Bonello Commission, the Venice Commission, the Chamber of Advocates and several academics. By adopting an objective international law analysis, the author compiles internationally recognised standards, taking the form of dicta of principles rather than tangible requirements. The applicability of these principles to the domestic system is explored by analysing the pending judgement Pace Asciak et v Prime Minister et and the ensuing preliminary ruling proceedings before the Court of Justice of the European Union. Reconciling the domestic historical perspective with the international perspective, the study identifies the main precarious elements of the previous judicial appointment model as being the unfettered discretion of the Executive, coupled with a lack of objective procedure for appointment – requisites of the concepts of separation of powers and judicial independence. This study confirms that the new judicial appointment model neutralizes the deficiencies of the previous systems by adapting to the wide criticism and objective principles. Nonetheless, the author determines several defective legal technicalities, with vacation from judicial office, the Chief Justice’s appointment and the President’s contentious role standing out. The findings indicate that generally, the new judicial appointment system follows the ‘European Model’, international principles, human rights considerations and the direction anticipated by domestic stakeholders. Nonetheless, various areas which may induce detrimental legal effects remain to be addressed by legislators down the line.