The constitutional cost of political intransigence | Deborah Schembri

Deborah Schembri, lawyer and former parliamentary secretary

The appointment of outgoing Chief Justice Mark Chetcuti in 2020 was widely hailed as a historic moment in the evolution of Maltese judicial appointments. For the first time, the highest office within the judiciary was filled following consensus between the government and the Opposition.

This was particularly significant since, at the time, the Maltese Constitution neither required consensus nor a two-thirds parliamentary majority for such an appointment. That requirement was only introduced later that same year as part of a broader constitutional reform aimed at shifting the process away from an executive-dominated model towards one grounded in cross-party agreement.

Before the 2020 reform, the president’s nomination of a chief justice was effectively a constitutional formality. The prime minister’s advice was invariably followed, meaning that in a rigid two-party system the party in government enjoyed near total control over the leadership of the judiciary. While efficient, this system was deeply flawed. It neither rewarded merit nor insulated the judiciary from partisan politics. It lacked transparency and failed to secure the separation of powers so forcefully advocated by Montesquieu, thereby weakening the system of checks and balances expected of a modern democracy.

Concerns about excessive executive influence over judicial appointments were repeatedly raised by bodies such as the Venice Commission. To his credit, the then Opposition leader Adrian Delia acted in the national interest when he reached agreement with Prime Minister Robert Abela on Mr Justice Mark Chetcuti’s nomination. Yet judicial independence could not be left to executive restraint or Opposition goodwill alone. Structural safeguards were necessary, and these needed to be enshrined in the Constitution itself.

From this perspective, the introduction of the two-thirds parliamentary majority for appointing a chief justice was a commendable reform. The creation of the Judicial Appointments Committee signalled a move towards a merit-based system, while the requirement of cross-party agreement for the top judicial post appeared to be the crowning achievement of the reform—a system that might even have made Montesquieu proud… at least in theory!

In practice, however, the reform was left incomplete. While executive power was curtailed and the separation between the executive and the judiciary strengthened, no mechanism was introduced to deal with political deadlock. Government adopted an overly optimistic assumption that consensus would always be reached, largely because the political leaders of the time had managed to act in good faith even without constitutional compulsion.

The current impasse over the appointment of a new chief justice exposes the flaw in that assumption. Although it is tempting to attribute the situation solely to failed dialogue or political obstinacy, that explanation only tells part of the story. The immediate trigger may have been the Opposition leader’s rejection of a highly competent, academically accomplished, efficient, erudite and widely respected lady justice without explanation, but the real problem lies deeper. The Constitution provides no fallback mechanism when consensus fails, leaving the country vulnerable to institutional paralysis.

It is particularly disappointing that Opposition leader Alex Borg, who promised to bring a breath of fresh air to partisan politics, is instead proving to be little more than a mouthpiece for an extremist faction within his party—a faction for whom the national interest runs counter to their own. Their current dominance and his lack of experience brought the country on the brink of a constitutional crisis.

Supermajorities are designed to protect institutions, inspire confidence, and signal broad political endorsement. In polarised systems, where intransigence is often mistaken for political strength, supermajorities can become self-defeating. The result is paralysis—the highest judicial office may be blocked indefinitely, leaving the courts to function under an acting chief justice or, worse, with no chief justice at all.

Sound constitutional design anticipates deadlock. Robust systems incorporate automatic, rule-based fallback mechanisms. One option is seniority-based appointment, where the most senior eligible justice assumes office. This rewards experience and continuity and removes political bargaining, though it may elevate a candidate lacking leadership skills. Another option is threshold reduction, whereby the required two-thirds majority drops to a simple majority after a defined period. While imperfect, this approach prevents indefinite stalemate and encourages genuine negotiations, as the Opposition knows its influence is time limited.

Given the evident presence of bad faith in the current impasse, threshold reduction appears to be the most pragmatic solution for the future. It minimises the capacity for obstruction while preserving the likelihood that the eventual appointee will be both judicially competent and administratively capable, however, any change to the current system would necessitate a two-thirds parliamentary majority as per Article 66 of the Constitution!

As to the current situation, Borg’s insistence that bipartisan agreement should have preceded the tabling of a parliamentary motion reflects a troubling lack of political maturity and a lack of appreciation for constitutional urgency. Had government not acted in a timely fashion, Malta risked a full-blown constitutional crisis, with the office of chief justice left vacant and no resolution in sight.

While the Opposition undeniably enjoys a constitutional veto, the question is no longer whether it should compromise, but how responsibly it should exercise that veto— particularly in light of the government’s unprecedented electoral mandate. One can only hope that reason prevails over political brinkmanship, and that this impasse is resolved before lasting damage is inflicted on Malta’s judicial institutions.