An analysis of the constitutional mechanisms regulating the appointment of the judiciary in Malta

Abstract

A debatable topic which has been on the national agenda for many years concerns the constitutional mechanisms which regulate the appointment of the Judiciary. The aim of this term paper is to review these mechanisms and suggest amendments to the present law. Section A provides a historical overview of the constitutional mechanisms which existed, starting from those under the British Rule until the amendments which were made in 1974 to the Independence Constitution. Section B reviews through the system which existed until the 2016 constitutional amendments. This section also incorporates a detailed review of the constitutional requirement of the practice of the profession of advocacy and the changes which were made in the 1961 Constitution to widen the interpretation and not limit this practice to be only at the bar. Section C analyse the flaws of the 1964 Constitution provisions and the proposals put forward by various interested stakeholders such as The Commission for the Holistic Reform of Justice System, The Malta Chamber of Advocates and the Association of the Judiciary. This section also reviews if a distinction exists between politics and the appointment of the Judiciary, taking into account controversial political appointments which were made throughout the years. Section D gives an overview of Bill 142 of 2016 and Act no. XLIV of 2016, and the opinions of various interested stakeholders such as the Dean of the Faculty of Laws, Judge Emeritus Giovanni Bonello and The Malta Chamber of Advocates. In the Conclusion, the author gives his opinion on the current constitutional mechanisms which regulate the appointment of the Judiciary and proposes amendments to the current law in order to minimise the risk of having political appointments and to ensure that the system enjoys the necessary independence, transparency and credibility.