Manufactured crisis: Was Malta really on the brink of a constitutional crisis?

Chief Justice Mark Chetcuti celebrated his 68th birthday on Wednesday, 4 February. This meant that from Thursday he would no longer occupy the role of president of the law courts. The Constitution places an age limit of 68 on the term of judges, including the chief justice. 

Up until Wednesday afternoon, parliament had not yet chosen Chetcuti’s replacement. Indeed, it had not even taken a vote on a motion to appoint the successor because no consensus had been reached yet on the person. 

The government insisted that unless its motion proposing Judge Consuelo Scerri Herrera as chief justice was discussed and voted upon in parliament, Malta would have woken up to a “constitutional crisis” on Thursday since the role would be vacant. 

Prime Minister Robert Abela went as far as calling the crisis “unprecedented” and implied that it would have left every court decision in Malta “contaminated”. 

The Opposition had initially refused to concede a debate on the government’s motion on Wednesday, calling for normal parliamentary procedure to be respected. Consequently, the debate would have had to happen on Monday, 9 February—five days after Chetcuti’s term would have ended. 

The Opposition leader did a U-turn and accepted to discuss the government’s chief justice motion after meeting President Myriam Spiteri Debono (right), who in light of the Speaker’s interpretation of the Constitution is likely to have wanted to avert legal wrangling on the matter. (Photo: James Bianchi/MaltaToday)

However, the Opposition eventually changed its stand on Wednesday afternoon when President Myriam Spiteri Debono spoke to Opposition leader Alex Borg. The intervention of the president would suggest that she wanted to avoid a crisis of sorts. 

But was Malta really on the brink of a grave constitutional crisis as the prime minister suggested when he closed the acrimonious parliamentary debate? 

The simple answer is no. Even though different legal interpretations exist of what the Constitution says, it also includes two provisions that ensure the role of chief justice is never vacant. In these circumstances, a constitutional crisis was hardly a possibility. It was rather a manufactured political crisis and this is why: 

PROVISO 1: LACK OF AGREEMENT 

The first provision that ensures continuity of the role of chief justice is found in Article 96 of the Constitution, which outlines how judges are appointed. Subsection 3 deals specifically with the appointment of chief justice and states: 

“(3) The Chief Justice shall be appointed by the President acting in accordance with a resolution of the House supported by the votes of notless than two-thirds of all the members of the House: 

Provided that notwithstanding the provisions of article 97(1), if the Resolution is not supported by the votes of not less than two-thirds of all the members of the House, the person occupying the office of Chief Justice shall, in any circumstance, remain in office until the Resolution is supported by the votes of not less than two-thirds of all the members of the House.” 

This section clearly outlines that if a resolution proposing the appointment of a new chief justice does not obtain the required two-thirds majority then the sitting chief justice “shall, in any circumstance, remain in office” until their replacement is finally chosen. The reference to Article 97(1) is the age limit imposed on the judiciary, which requires them to retire when they reach 68 years. 

Speaker’s interpretation 

According to the legal interpretation of this proviso given by Speaker of the House Anglu Farrugia, Chief Justice Mark Chetcuti’s continued permanence in office was conditional on parliament having debated and voted upon a resolution that failed to achieve the two-thirds threshold. 

Speaker Anglu Farrugia controversially ruled that in the absence of a motion and vote on a new chief justice, the incumbent could not have remained in office. (Photo: James Bianchi/MaltaToday)

Farrugia’s controversial ruling meant that in the absence of a debate, and even more so a vote, Chetcuti’s term would have ended at midnight on Wednesday, leaving Malta without a chief justice on Thursday. 

This is the reason why the government wanted its motion, proposing Judge Consuelo Scerri Herrera as the next chief justice to be discussed urgently on Wednesday. It is possibly the reason why President Myriam Spiteri Debono intervened and spoke to Justice Minister Jonathan Attard and Opposition leader Alex Borg, asking them to find a way forward. After this meeting, the Opposition did a U-turn and accepted that the debate be held on Wednesday with the vote taking place on the same day. 

The fact that government’s nomination failed to garner two-thirds support among MPs automatically meant that Chetcuti’s term in office will be extended until his replacement is appointed. 

The debate and vote on Wednesday helped avoid wrangling on the legal interpretation of Article 96 in relation to the continued presence in office of the sitting chief justice. Nonetheless, the Speaker’s interpretation could have also been contested since a precedent already exists where a constitutional role continued to be occupied beyond the legal term despite no motion and no vote having taken place to appoint a successor. 

A different legal interpretation 

A different legal interpretation of Article 96 suggests that Mark Chetcuti could have stayed in office even if the debate and vote on Wednesday did not take place since the proviso includes the phrase “in any circumstance”. 

Indeed, the transcript of the parliamentary committee debate held on 29 July 2020 when this wording was included in the Constitution, shows how then Justice Minister Edward Zammit Lewis underscored the importance of the words “in any circumstance”. 

Zammit Lewis had said: “Now, I want to accentuate the emphasis done on the phrase ‘in any circumstance’ because we have statutory retirement… we are saying that although the particular judge, in this case the chief justice, would have surpassed the statutory age limit of 65, he should remain in office until an agreement is reached.” 

It is clear from the parliamentary debates that the intention of legislators was to ensure continuity in office of the chief justice until an agreement on the successor is reached. 

Furthermore, a precedent was created in March 2021 when the term of Ombudsman Anthony Mifsud came to an end. The wording of the article in the Constitution that deals with the appointment of the ombudsman is the same as that for chief justice. 

Former Ombudsman Anthony Mifsud (centre) seen here in September 2022 when he appointed commissioners within his office. Mifsud continued to discharge his functions fully despite his term having ended in March 2021. At the time his replacement, which required a two-thirds majority, was not yet agreed upon and all sides interpreted the Constitution in such a way that allowed him to remain in office until agreement was reached. Mifsud’s replacement, former Judge Joseph Zammit McKeon was only appointed in March 2023. (Photo: Ombudsman)

At the time, the government and Opposition had not yet agreed on Mifsud’s replacement and it was accepted that according to the Constitution he should remain in office until a successor is appointed by parliament. No motion or vote on a nominee had taken place. Indeed, Mifsud had remained in office for two more years and continued to discharge his functions unhindered. At the time, nobody spoke of a constitutional crisis. 

But even if this legal interpretation and precedent are discarded—as they were—how real was the possibility of a constitutional crisis developing because of a vacant office? 

This is where the second constitutional proviso would have kicked in. 

PROVISO 2: AN ACTING ROLE 

The second provision that ensures the post of chief justice is never vacant is found in Article 98 of the Constitution, which speaks of the appointment of an acting chief justice. 

Subsection 1 of this article states: 

“(1) If the office of Chief Justice is vacant or if the Chief Justice is for any reason unable to perform the functions of his office, then, until a person has been appointed to and has assumed the functions of that office or until the Chief Justice has resumed those functions, as the case may be, those functions shall (except to such extent, if any, as other provision is made by law) be performed by such one of the other judges of the Superior Courts as may be designated in that behalf by the President, acting in accordance with the advice of the Prime Minister.” 

This means that if the office of the chief justice is vacant, the president, acting on the advice of the prime minister, may appoint a sitting judge to serve as acting chief justice until parliament appoints a new chief justice. 

If parliament failed to take a vote on Wednesday and the Speaker’s interpretation of the Constitution was adhered to, the prime minister could have easily indicated to the president, the name of a judge, who could temporarily fill the gap in an acting capacity. 

In essence, this means that Malta can never end up in a situation where the post of chief justice is vacant because the Constitution contemplates at least two scenarios that prevent this from happening. 

This is why disagreement over the nomination of Judge Consuelo Scerri Herrera and the prime minister’s subsequent decision to plough ahead with a motion putting her name forward, could have never amounted to an “unprecedented constitutional crisis”. 

If anything, it was a political crisis of the prime minister’s making when he refused to continue engaging with the Opposition leader until consensus is reached on a name.