The disagreement over the appointment of a Chief Justice that has surfaced publicly in recent days is nothing new. It also arose in the selection of the Ombudsman and the Commissioner for Standards in Public Life, two other constitutional offices that require the approval of at least two-thirds of Members of Parliament. In both cases, disagreement over candidates not only delayed the appointments but, in the case of the Commissioner for Standards, it led to a change in the appointment procedure and the removal of the two-thirds majority requirement.
We must recall what should be obvious. The requirement of a two-thirds parliamentary majority for these appointments exists because these positions do not fall under the authority of the government of the day and therefore should not be filled by it alone.
Delays in filling independent constitutional offices, the weakening of mechanisms designed to instil confidence in the independence, efficiency and integrity of appointees, and public discourse aimed at disparaging the position and the motives of one side or the other all undermine public trust in politics and in our country’s institutions.
It is clear that three factors are obstructing appointments to independent constitutional offices.
- Contact between the Government and the Opposition generally occurs only when the incumbent is approaching the end of their term. The urgent need to find a candidate who enjoys the confidence of both sides of Parliament does not help create a spirit of calm, mutual trust in each other’s good faith, or basic courtesy.
- Consultation begins directly between the Prime Minister and the Leader of the Opposition, at a moment when both are under pressure to reach a decision on the candidate. If they fail to agree, the appointment procedure immediately stalls.
- There appears to be little discreet consultation with experts in the relevant fields or with the current office-holders, whether Chief Justice, Ombudsman, chair of a constitutional commission or authority, etc., before formal positions are taken on a candidate or candidates. This increases the risk that the Prime Minister and the Leader of the Opposition will not agree on a choice and, as has happened, that the names and reputations of prospective candidates are publicly dragged into political controversy.
In the case of the appointment of the Chief Justice, Repubblika urged consultation with the judiciary, as the government, above all, promised the European Commission it would do. This principle can apply to all independent constitutional offices. In many countries, both within the European Union and the Commonwealth, consultation procedures are designed to foster cooperation between Government and Opposition, trust and respect for the competence and integrity of appointees, and a strong sense of continuity and stability in state institutions, beyond political competition between parties and leaders.
Consultation begins early, out of the public eye and informally; it is led by experienced, integrity-driven administrative officials, with the aim of informing the Head of Government which prospective candidates are the most respected and trusted. Formal consultations or negotiations required by the constitution can then take place. Consultation is not restricted to a single name, but to a shortlist of three or more. In this way, candidates do not carry the label of being “the Government’s” or “the Opposition’s,” as is happening in Malta, and the chosen appointee is truly a “consensus candidate” rather than a “compromise candidate.” This also avoids the risk of appointments becoming a political football or of an office-holder’s term expiring without replacement.
We express concern at hearing the Prime Minister state that he wants a mechanism to be introduced for use when the two Houses of Parliament cannot agree on an appointment. Not because practical solutions should not exist, but because in the case of the Commissioner for Standards, the government’s solution was: “If the Opposition does not agree with the Government, the Government chooses on its own.” That method undermines the purpose of appointment procedures that are independent of the government.
There are many solutions used in other democracies that we can learn from. By way of example:
- The Chief Justice is chosen by and from among judges and magistrates.
- The Attorney General and Deputy Attorney General are chosen by the Judicial Appointments Committee, which already selects judges and magistrates.
- Holders of other parliamentary offices are chosen by a standing parliamentary committee composed of an equal number of government and opposition MPs, and in the rare event of a deadlock, the appointment is made by the President after consultation with the outgoing office-holder.
There is no doubt that other solutions can be found to reduce delays and improve the embarrassingly low quality of political debate surrounding such appointments, without reverting to colonial-era systems in which the Prime Minister alone selects constitutional officials who are meant to oversee him. We say this while expressing appreciation for the President’s considered interventions in these circumstances.
We wish to make an additional remark. In his parliamentary speech during the vote on the appointment of the Chief Justice, the Prime Minister accused Repubblika of blocking the appointment of the person he had chosen for that position. Repubblika has never expressed an opinion on the Prime Minister’s choice, neither in this case nor in any other appointment. We make no claims in this regard. However, we have every right and duty as citizens to speak publicly about the appointment process, in the interest of democracy and good governance in Malta, and for the benefit of everyone who lives in our country.