Malta gave its prime minister a lot of power as part of judicial-appointment reforms, but the European Court of Justice says it did so without following the playbook favored by corrupt and authoritarian governments.
(CN) — At a time when Poland and Hungary stand accused of undermining judicial independence to concentrate power, Europe’s highest court ruled on Tuesday that Malta included enough safeguards when it gave prime ministers more power to pick new judges.
Malta overhauled its system for judicial appointments in 2016, spurring a lawsuit three years later from the civil society group Repubblika, amid a broader movement to force political change on the island after the 2017 murder of anti-corruption investigative journalist Daphne Caruana Galizia in a car bomb. Her killing was linked to top government officials and led to the resignation of Prime Minister Joseph Muscat in January 2020.
Muscat’s Labor government was behind the judicial reforms, establishing an independent Judicial Appointments Committee to select judges for appointment, but still allowing a prime minister to bypass the committee, so long as candidates chosen this way still meet professional requirements laid down by the constitution.
Repubblika, which seeks to clean up political corruption in Malta, sought to nix Muscat’s appointment of six judges — three to the Superior Courts and three to the Inferior Courts — in April 2019. The group charged that, since taking office in 2013, Muscat had appointed too many judges who were active in his Labor Party and that this gave “rise to suspicion of political interference in the judiciary.”
On Tuesday, however, the European Court of Justice found that Muscat’s appointments passed muster. On one hand, the court held, the authority for a prime minister to bypass the special committee is to be used “only in exceptional circumstances.” And furthermore, the ruling continues, “that power is not such as to give rise to legitimate doubts concerning the independence of the candidates selected.”
The decision also says Malta’s establishment of the Judicial Appointments Committee “serves to reinforce the guarantee of judicial independence.”
In conclusion, the court said Malta’s system for judicial appointments cannot be seen as giving “rise to legitimate doubts” about “the imperviousness” of judges “to external factors – in particular, to direct or indirect influence from the legislature or the executive” and “as to their neutrality vis-à-vis the interests before them.”
In December, Advocate General Gerard Hogan said in an advisory opinion for the high court that EU law allows the executive power, such as a prime minister, to play a role in appointing judges. Still, he said national governments must ensure that judges “enjoy guarantees of independence” and are financially autonomous. He advised the court to find that Malta’s judicial reforms were not an infringement of EU law.
Despite the negative ruling, Repubblika claimed victory and said its lawsuit compelled Malta to enact other measures to take away a prime minister’s discretion in choosing judges. Malta’s parliament passed those new changes last summer.
“Repubblika achieved the liberation of our judiciary from the interference of this and all future governments,” Repubblika member Manuel Delia wrote in a blog post. “We have ensured that no present or future Joseph Muscat will be able to appoint judges and magistrates for no justifiable reason except their loyalty to his political party.”
Last week, a first batch of new judges, including four to the Superior Courts, was appointed under Malta’s recently revamped system and Repubblika praised them as fit for office.
“The process of their selection is a significant step for justice within our country,” it said in a statement last week. “Repubblika is proud to have contributed to this development.”
For its part, the government, which is run by the Labor Party with its leader Robert Abela as prime minister, hailed the ruling as proof that Malta is on the right track.
Justice Minister Edward Zammit-Lewis said it vindicated the government’s position that argued a prime minister can have “a decisive power to appoint judiciary” with an “independent body seen as another check and balance.”
“We never acted against the rule of law and EU law,” he said in a tweet.
The Labor Party rejects critics who say judges affiliated to the party cannot be viewed as independent, pointing to the United States and Germany as countries where judges often have such links.
The government also argues that the court’s findings should dispel the notion Malta is a corrupt country.
In recent years, besides the killing of Caruana Galizia, Malta has come under fire for selling passports to non-EU citizens for very high sums — so-called “golden passports” — and for acting as a tax haven.
Courthouse News reporter Cain Burdeau is based in the European Union.