On Wednesday 29th July 2020, Parliament unanimously approved Bills no. 140 and 141 of 2020 at Committee Stage, before it adjourned for summer recess. These Bills endeavour to make significant reforms to the Constitution of Malta, by amending the appointment of the President of Malta; the Chief Justice; Judges and Magistrates; and altering the composition of the Judicial Appointments Committee amongst others.
The President of the Republic
Last amended in 1974, when Malta became a Republic, the office of the President addressed in Article 48 of the Constitution, will now be appointed by resolution of the House of Representatives, supported by the votes of not less than two-thirds parliamentary majority. In case of disagreement on a nomination, the incumbent would remain in office until an agreement on a successor is reached.
Similarly, the office of the President shall now only become vacant where he/she is removed upon an address by the House, supported by the votes of not less than two-thirds of all the members thereof, on the grounds of proved inability to perform functions of his office (whether arising from infirmity of body or mind or any other cause) or proved misbehaviour. Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the inability or misbehaviour of the holder of the office.
The amendments shall also provide that the President shall act in accordance with his own deliberate judgment in the exercise of the powers conferred on him/her by the Constitution, to make an appointment to any office under the Constitution.
Judges and Magistrates
Article 96 and 100 of the Constitution shall also be amended and provide that the judges of the superior courts, and magistrates of the inferior courts, shall be appointed by the President acting in accordance with the recommendation made by the Judicial Appointments Committee (established by Article 96A of the Constitution).
In practical terms, when a vacancy in the office of judge or magistrate occurs, the Committee shall send to the President, through the Secretary, the names of three candidates that the Committee considers to be most suitable along with a detailed report on the suitability and merit of these three candidates who, in the opinion of the Committee, are deemed to be the most suitable for the appointment of these offices. The President shall then be entitled to elect a judge/magistrate exclusively from the names of the three candidates, which names shall be made public in the President’s decision.
Impeachment of judges and magistrates will no longer be the responsibility of Parliament but of the Commission for the Administration of Justice. Appeals can then be filed before the Constitutional Court.
A new article regulating vacancies in the office of a member of the judiciary
Article 96B shall be introduced to the Constitution, which will provide that, whenever a vacancy occurs in the office of judge or magistrate, the Minister responsible for justice shall issue a public call for applications open to persons who have the necessary qualifications and experience required to be appointed to the office of judge or magistrate. A candidate will only be eligible if he/she:
- has practiced as an advocate in Malta for a period of not less than seven years to be appointed as Magistrate, or twelve years to be appointed as a Judge;
- is in possession of a valid warrant to practice as an advocate in Malta at the time of application, and is not precluded from appointment as a member of the judiciary by any legal impediment;
- is able to express oneself in the Maltese and English language and can communicate in a clear and concise manner;
- possesses integrity, correctness and honesty in public and private life;
- has knowledge of the law, of court procedures and professional experience;
- is industrious, able to work under pressure, diligent, analytical and able to make decisions;
- is impartial and independent;
- is not involved in any commercial or business activity and does not have a financial situation which raises doubt about the ability to perform judicial duties in a proper manner;
- is able to work in a collegial environment; and
- possesses knowledge of the Code of Ethics for members of the Judiciary and is willing to undertake continuing professional development.
The Judicial Appointments Committee
The composition of the Judicial Appointments Committee (established in 2016), shall be altered to include:
- the Chief Justice;
- two members elected for a period of four years by the judges of the superior court from among themselves;
- one member elected for a period of four years by the magistrates of the inferior courts from among themselves;
- the Auditor General;
- the Commissioner for Administrative Investigations (Ombudsman); and
- the President of the Chamber of Advocates.
In the eventuality that any of the following members of the Committee abstain or are challenged, they shall be substituted accordingly:
- The Chief Justice shall be substituted by a judge who shall be the next most senior judge in office;
- The Auditor General shall be substituted by the next most senior officer according to office in the National Audit Office;
- The Commissioner for Administrative Investigations shall be substituted by the next most senior officer according to the Office of the Ombudsman;
- The President of the Chamber of Advocates shall be substituted by the next most senior advocate according to office in the committee of the Chamber of Advocates.
The functions of the Committee shall also be augmented to include: to give advice on the eligibility and merit of persons who already occupy the offices of Attorney General, State Advocate, Auditor General, Commissioner for Administrative Investigations (Ombudsman) or of magistrate of the inferior courts to be appointed to an office in the judiciary; and to approach with a view of eliciting interest amongst qualified persons for the office of judge or magistrate.
Furthermore, the Committee shall regulate its own procedure and shall be obliged to publish, without being subject to any direction, the policy amongst others of maintaining gender balance in the appointment of members of the judiciary, which shall guide the Committee.
The Chief Justice
The Chief Justice shall be appointed by the President acting in accordance with a resolution of the House supported by the votes of not less than two-thirds of all the members of the House.
Other important Bills which feature in the pipeline, and are to be debated when the House reconvenes on Monday 5th October, include: Bill no. 157 of 2020 which purports to reform the procedure by which the appointments of the Principal Permanent Secretary and Permanent Secretaries are made; Bill no. 158 of 2020 which aims at involving the Cabinet of Ministers in the processes of the appointments of persons in senior positions; and Bill no. 159 of 2020 which gives the Commissioner for Standards in Public Life the power to refer the results of findings of an act of corruption directly to the Attorney General, and to provide a legal basis for the appointment of persons of trust.