A false narrative has been circulating in recent days, claiming that the current impasse in appointing a new Chief Justice is the result of rules imposed on us by the Venice Commission or “the Europeans”. This is absolutely false. The truth is the opposite. Europe warned Malta not to adopt the very system that is now failing.
This is clear from the documented record. In its 2018 opinion, the Venice Commission did not recommend a parliamentary vote to appoint a Chief Justice. Instead, it advised that the appointment be made by the President on the advice of the Judicial Appointments Committee, with a majority of its members drawn from the judiciary, to remove politics from the appointment of the Chief Justice and safeguard judicial independence. No one proposed that Parliament should become the appointing authority. The Government deliberately chose to ignore that advice.
In 2020, the Government unilaterally drafted legislation requiring a two-thirds majority for the appointment of a Chief Justice and only afterwards asked the Venice Commission for its opinion. The response was clear and unequivocal. The Venice Commission warned of the danger that candidates for appointment would start courting politicians and that, if the parties failed to agree, the entire process would grind to a halt. The Commission warned that such a system was likely to lead to deadlock. The Government ignored that advice and pressed ahead.
When the bill became law, the Venice Commission expressed regret that Malta had proceeded against its advice and reiterated its concern about precisely what is now happening under the new law.
The European Commission’s Rule of Law Reports have repeatedly stated that the procedure for appointing the Chief Justice is defective. They criticised the exclusion of the judiciary from the process. They criticised the Government for failing to follow the Venice Commission’s advice. In its 2022 report, the European Commission issued a formal recommendation to Malta to remedy these defects. That recommendation has been repeated in every annual report since 2022. Each time, the Government chose to ignore it.
It is therefore entirely misleading to suggest that Malta is operating under a system imposed by “the Europeans”. That is not the case. The system we have was conceived, introduced, and defended by our own Government in defiance of European advice, and Europe has criticised it consistently since its introduction.
Against this background, the Prime Minister’s remarks that the country is stuck because of those who are “pushing for an appointment based on revenge and hatred” are not only false but revealing. We understand the Prime Minister’s remarks as a reference to Repubblika. The Prime Minister knows that, since 2018, we have consistently argued that the method of appointing the Chief Justice must change to end political bargaining and protect the independence of the judiciary. He also knows that our arguments reflect accepted standards in democratic Europe and are echoed in the advice and warnings of European institutions. By attacking those who opposed this law from the moment it was introduced, the Prime Minister is attempting to evade responsibility for the Government’s stubborn refusal to amend a system it had long been warned would fail.
There is a way forward if there is political maturity. Both sides of Parliament must work seriously and without delay to reach a consensus. Defective as it is, the law that exists must now be made to work. Malta’s judiciary includes many senior judges who enjoy broad political and institutional respect and confidence. It should not be difficult for Parliament to choose one of them.
Beyond the next appointment, the Government must, without further delay, convene the constitutional convention that has been promised for fourteen years. That is the appropriate forum for fresh thinking about how the Chief Justice should be appointed in a way that genuinely safeguards judicial independence, removes politics from the role, and avoids unnecessary deadlock, in line with European standards that Malta claims to respect.
This crisis was predicted. The warnings have long been written down. Responsibility lies with those who ignored them. It is poor leadership to blame “the Europeans” and civil society for the consequences of a law we know to be defective. Good leadership requires fixing the law properly.