Chief Justice stalemate set to drag on as major parties stall on anti-deadlock mechanism

After tensions between the Labour Party and the Nationalist Party over the appointment of Malta’s next Chief Justice spilled into public view last month, Prime Minister Robert Abela and Opposition Leader Alex Borg are keeping their cards close to their chest about how they intend to break the deadlock.

During Monday’s plenary session in Parliament, Abela and Borg both gave vague statements to the press about the ongoing discussion to circumvent the required two-thirds majority vote which is required for the next Chief Justice to be formally appointed.

While the Prime Minister refused to divulge any further information, Borg has already warned that the Opposition will not vote in favour of any amendments which grant the government “absolute power” over who will fill the role.

So far, the Opposition voted against the appointment of Judge Consuelo Scerri Herrera and is yet to publicly pronounce itself on the government’s second nominee, Judge Miriam Hayman. Though the incumbent Chief Justice, Mark Chetcuti, is officially past retirement age as of last month, the Constitution allows for Chetcuti to stay in his post until the next nominee is confirmed.

The government’s approach to the process of appointing the next Chief Justice turned into a political firestorm after the government broke with protocol and publicly named its preferred candidate before the nominee had been agreed upon with the Opposition.

A few days after Scerri Herrera’s nomination was voted down, Judge Lawrence Mintoff, who candidly admitted to having private conversations with the Prime Minister about his nomination, publicly accused Abela of placing partisan considerations above the country’s need for a candidate who enjoys the trust and approval of both major parties in Parliament.

The Prime Minister continues to brush off criticism about how the process was handled, claiming that it was “obvious” that he would need to consult potential appointees before nominating them.

Labour MP Ramona Attard further argued that no name should be proposed without first confirming the individual’s interest in the post, basing her argument on the claim that former Prime Minister Eddie Fenech Adami had carried out the same kind of outreach when nominating Vincent De Gaetano for Chief Justice in 2002.

Sources familiar with the appointment of the Chief Justice in 2002 pointed out that this argument was a stretch at best. They were granted anonymity to speak candidly about the judiciary system.

De Gaetano was summoned by the Prime Minister after the decision was made at the highest level, with sources insisting that “all the vetting had already been done and nothing was left” to be decided.

“It is obvious that once the decision to offer the post to De Gaetano was taken, someone had to summon him to tell him what had been decided. After all, he could have refused the appointment, and no one would have been any wiser as to who else would have been a potential nominee had Cabinet decided to appoint someone else,” one source suggested.

Whereas De Gaetano’s meeting with Fenech Adami was described as a mere formality in which the nominee was notified of Cabinet’s intent to submit his nomination, it is evident that the cross-party consensus which was required prior the nomination of Scerri Herrera and Hayman – as well as in the case of Mintoff – was not achieved.

The same legal sources consulted by The Shift for this article also described the possibility of reverting to a simple majority vote as an “absurd” regression given that it would effectively grant the government the right to nominate whoever it pleases without facing any resistance.

When asked what system would best help break the current impasse, sources suggested that the Judicial Appointments Committee (JAC) should make the necessary recommendations to the President of Malta – but only if the secretary of the Board is no longer a political appointee that is handpicked by the Justice Minister.

“The secretary should be appointed by the Commission for Administration of Justice, as is the case with the Secretary of that commission and all sub-commissions such as the Judicial Appointments Committee. The present situation allows the government to appoint a secretary who can act as its eyes and ears on the JAC,” one source said.

Just before Monday’s plenary in Parliament, three NGOs – aditus foundation, the Daphne Caruana Galizia Foundation, and Repubblika – expressed their concerns about the government’s rush to push forward constitutional amendments which could “weaken” the independence of the Chief Justice’s Constitutional office.