Malta

Following constitutional changes made in 2020, the chief justice is appointed by a two-thirds majority in the Maltese Parliament. The Judicial Appointments Committee has no say in such appointments.

The chief justice

• Is the president of the Constitutional Court and of the Court of Appeal
• Chairs the Judicial Appointments Committee;
• Is a member of the Commission for the Administration of Justice responsible for judicial discipline.

The European Commission’s 2022 Rule of Law Report recommended that Malta “address the need for involvement of the judiciary in the procedure for appointment of the Chief Justice, taking into account European standards on judicial appointments and the opinion of the Venice Commission”. As pointed out in the Commission’s 2023 Report, no steps have been taken to change the system of appointment of the chief justice.

The current procedure has been criticised on a number of grounds. First, there is no involvement of the judiciary in the appointment of the chief justice. Also, the law allows for the appointment to that office of a person who is not already a judge. Second, the absence of an anti-deadlock mechanism can significantly delay appointments. The Council of Europe’s Venice Commission pointed out that, while the cross-party consensus in Parliament could increase the credibility of the successful candidate, the likelihood of candidates lobbying among politicians could undermine the process. The Venice Commission also highlighted the likelihood of the election ending in deadlock. According to the Commission, in the event of a prolonged stalemate in the Parliament, letting the Supreme Court judges elect the chief justice from among themselves would be a better solution. At that point, the government pointed out that no agreement on an anti-deadlock mechanism could be reached with the opposition. As highlighted by the European Commission, an anti-deadlock mechanism for the appointment of the Chief Justice has still not been introduced.

Another issue raising concerns is the appointment procedure for members of specialised tribunals. The members of such tribunals are often appointed by the responsible minister.

There have been some concerns regarding the decision-making by such tribunals. For example, in the S.H. v. Malta, judgment of 22 December 2022, the European Court of Human Rights (ECtHR) pointed out that it took the International Protection Appeals Tribunal a mere 24 hours to review the first-instance decision on the asylum seeker’s application by the International Protection Agency and, within that timeframe, it could only undertake a superficial assessment of all the documentation presented. In the ECtHR’s view, the brief decision by the Tribunal, confirming the incongruous conclusions reached at the first instance and providing no further reasoning, supported this conclusion. The ECtHR also highlighted that the government was only able to invoke one situation whereby the Tribunal overturned the Agency’s decision. In the remaining 478 reviews undertaken in 2021, the Tribunal confirmed the first-instance decision. There was a clear tendency, therefore, on the part of the Tribunal to automatically confirm the Agency’s decisions within a short timeframe, as happened in the applicant’s case. As a result, an asylum seeker was not offered effective guarantees protecting him from arbitrary removal. Further applications seeking asylum were treated in the same way and, hence, he was deprived of a rigorous individual assessment of his asylum claim. The Tribunal confirmed the Agency’s incongruent conclusions without providing any reasoning. While the case revealed systemic problems, the ECtHR did not demand general measures in this judgment, because it was the first case of this kind, and the parties have referred to legislative amendments to the process.

In its Recovery and Resilience Plan, the government has committed to carry out a review of the independence of the specialised tribunals, in communication with the Venice Commission, and the corresponding legislative changes are to enter into force by 31 March 2026.

Stakeholders in consultation with the European Commission expressed concern that disciplinary proceedings could be initiated by a politically appointed chief justice and a minister responsible for justice and that, overall, the Commission was politicised.

In the case of Michael Christian Felsberger et vs TSG Interactive Gaming Europe Ltd, with the ruling delivered on 21 July 2023, Judge Toni Abela refused to enforce an Austrian court ruling against a Maltese gaming company, as requested by plaintiffs. His ruling made use of contentious amendments to the Gaming Act from earlier in 2023 that granted gaming companies immunities from legal action. It essentially asserted the predominance of national law over EU law, as derived from the Constitution. The Maltese Constitution has two provisions – Article 6, asserting the Constitution’s supremacy, and Article 65, introduced in 2003, after Malta’s accession to the EU, stating that the Parliament would make laws in conformity with full respect for international and regional obligations, including those assumed under EU law. Under the European Union Act of 2003, EU law is considered binding on Malta.

According to Maltese academics, it is too early to argue that the Polish scenario – of governmental instrumentalisation of courts against the EU – is likely; it remains to be seen whether Article 6 of the Constitution is being weaponised to challenge the primacy of EU law. However, while the above-mentioned decree challenged the primacy of the EU law to support governmental policy regarding gaming industry, it may very well have been driven by pragmatism, rather than a decisive EU sentiment. If so, the contestation of EU law will not be as systemic as in some other instances. Also, while judicial appointments have been politicised until recently, and remain so as regards the appointment of the chief justice, it is hard to say that the Maltese judiciary has been captured. The perceived level of judicial independence is also quite high both among the general public and companies. In 2023, 66 per cent of the public and 65 per cent of companies perceive the level of independence of courts and judges as “fairly or very good.” According to the 2023 EU Justice Scoreboard, however, perceived judicial independence among the general public has slightly decreased compared to 2022.

The level of judicial resources remains a concern. The number of judges continues to be one of the lowest in EU (8.2 per 100,000 inhabitants), which potentially affects the efficiency of the justice system. New members of the judiciary have complained about a lack of basic resources and skilled support staff for the implementation of their tasks.

Most efficiency indicators, as shown in the 2023 EU Justice Scoreboard, have worsened. For instance, the estimated time needed to resolve administrative cases at first instance is 1,356 days, the longest in the EU. Limited progress has been registered regarding the estimated time needed to resolve litigious civil and commercial cases at first instance, which decreased from 550 to 529 days. Stakeholders have raised concerns in relation to the efficiency of justice, including as regards criminal cases of domestic violence.

While the European Commission pointed to some progress since 2022 in its 2023 Rule of Law Report, it called for stronger efforts to improve the efficiency of justice and reduce the length of proceedings.