The Constitutional Court has dismissed a request for an interim measure made by civil society group Repubblika in a case challenging the current system of judicial appointments. The group had requested that no new judges and magistrates are appointed.

Earlier this year, the group had filed a court case against the prime minister and the justice minister, seeking to nullify judicial appointments made before the government implemented the recommendations by the Venice Commission on the rule of law and the independence of the judiciary.

The appointment of six new members of the judiciary is being attacked by the NGO, which said that no new judges or magistrates should have been appointed until a revised system of appointments was implemented.

Last May, Mr. Justice Mark Chetcuti presiding the First Hall, Civil Court, had declared that Repubblika did not have the required juridical interest in the issue under Maltese law, but had postponed a decision about a reference to the European Court.

A week later, that same court upheld both parties’ request to appeal, declaring that such a “sensitive” issue merited direction from the Constitutional Court and emphasizing the need for the appeals to be handled with urgency.

Judgment was handed down in those preliminary appeals today, by Chief Justice Joseph Azzopardi together with Mr Justices Giannino Caruana Demajo and Noel Cuschieri.

“The law is not static and, even without a change in statutory law, what was good and valid in the past did not necessarily remain so today. In other words, the fact that judges and magistrates were always appointed in such manner in the past…did not mean that such method of appointment was satisfactory today,” said the court.

Although it turned down the request for an interim measure, the court did not say that the concerns highlighted by Repubblika had no basis. The court said it looked into the merits of the case “since other members of the judiciary could still be appointed pending final outcome of the case.”

The Court said that although Maltese judges and magistrates had long been appointed at the discretion of the Prime Minister, this did not mean that the situation was to remain as it is.

The law was a ‘living instrument’ to be applied with “discretion and moderation” so as to avoid legislative functions being usurped by the judiciary, resulting in a “democratic deficit”, the Court said. It observed that the current system of judicial appointments had performed well for many years and one could not dismiss with it to the extent of calling for a prohibitory injunction, which was a “drastic measure.”

In a separate judgment delivered on the dual appeals filed by the civil society group and the Attorney General, the Court declared that the Justice Minister was non-suited, stating that his presence at the swearing-in ceremony “was not relevant in determining his standing in the proceedings.”

The Court also upheld the conclusion of the first court which had said that Repubblika’s action was not one based on fundamental rights but an action to attack the validity of the law relating to judicial appointments.

The case had a legal basis under article 116 of the Constitution, said the court, dispensing with the need for Repubblika to prove its juridical interest. The case will now continue to be heard by the First Hall, Civil Court.

Reacting, Justice Minister Owen Bonnici said Repubblika and its lawyers Simon Busuttil and Jason Azzopardi were trying to stop the government from continuing to appoint judges and magistrates using an open and transparent system, which Parliament had unanimously approved in 2016. 

“They wanted the court to stop the government from appointing more members of the judiciary until the case is concluded, and also wanted this case to go before the court of the European Union. The constitutional court – the highest of the land – denied their request. Nor did it send this case before the EU court,” he said. “Instead, it sent it back before the First Hall of the Civil Court to continue.”