Clarifications On Judicial Appointments

The Chamber of Advocates (the “Chamber”) has today communicated with the Judicial Appointments Committee (the “Committee”) to seek clarifications in connection with the application by the Committee of a particular policy published by the Committee some days ago in connection with the treatment and evaluation of applications for candidates for judicial office consequent to the call for applications made by the Government of Malta.

The Chamber has sought clarifications with respect to the application of the policy set out in section 2(3) of the rules and guidelines of the Committee.  That policy statement reads as follows:

The independence of the judiciary both isolates the individual judge and/or magistrate from former associations to avoid the possibility of conflict of interests and imposes upon a judge and/or magistrate the highest standards in performing the duties and responsibilities of judicial office. It requires that each judge or magistrate devotes himself or herself exclusively to the duties of the judicial office, and not engage in any outside business or activity. The range of activities that are available to a practicing lawyer is therefore severely curtailed upon appointment to the bench.  It is accordingly essential that any person wishing to apply for judicial office should be and be seen to be, free of any political or other affiliations that may cause the applicant to be perceived as having any form of bias or potential conflict of interest. Moreover, it is important that to avoid, or at least mitigate the possibility or perception of conflict of interest and further promote judicial independence a cooling off period ought to be allowed between the date when affiliations are severed and the date when a recommendation to take-up judicial office is made. No Applicant shall be recommended for judicial office by the Committee unless at least 12 months would have lapsed from the date when all political and other affiliations have been severed and the date of the report to the President making a recommendation.

The Chamber, whilst favouring a policy which is intended to ensure not only that any person occupying judicial office is free from any actual bias or conflicts of interest, but also free of the public perception of any such bias, expressed concern with the JAC about the 12-month cooling off period, since an application of this policy would not have given enough time for eligible advocates to sever any current affiliations in a number of organisations in which they may have held memberships, given that the policies were only published a few days ago.  The Chamber has now received clarifications from the Committee that confirmed to the Chamber that whilst the policy only impacts those affiliations that create the perception of bias or conflicts of interest, it remains essential that candidates for judicial office should be free from such public perceptions.  It has also clarified however that not all types or forms of affiliations fall within this category, and that accordingly the policy is not intended and indeed does not a priori disqualify anyone from applying because of any affiliation, political or otherwise.   Whether an affiliation will or will not qualify as one that creates the perception of bias or conflict of interest will therefore be assessed by the Committee on the merits of each particular application and on a case-by-case basis.  Accordingly, no person having any affiliation should consider this policy as a bar to apply for judicial office by simply presuming that his or her affiliation would be considered by the Committee as creating a perception of bias or conflict of interest. It is of course clear that the 12 month cooling off period adopted by the Committee will only apply where an affiliation is deemed to create the perception of bias or conflict.

It is the Chamber’s understanding that a passive or low-key membership in an organisation would not, for instance, of itself, constitute an affiliation that creates the perception of bias or a conflict of interest and would only do so if accompanied by other factors that would create or are likely to create a public perception.

The Chamber encourages all members who may have a political or any other affiliation and who are interested in judicial office to apply for such office, since those affiliations will not necessarily be considered as creating a bias by the Committee.

Stefan Camilleri                                                                                                                                                                                                                                      Secretary General 

Chamber of Advocates