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6 maltatoday | SUNDAY • 8 FEBRUARY 2026 ANALYSIS Manufactured crisis: Was Malta really on Anybody hearing the prime minister speak during the parliamentary debate on government's motion to nominate on the precipice of a constitutional crisis. But was the scaremongering grounded in reality or was it a manufactured 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, includ- ing the chief justice. Up until Wednesday afternoon, parlia- ment had not yet chosen Chetcuti's re- placement. 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 mo- tion on Wednesday, calling for normal par- liamentary procedure to be respected. Con- sequently, the debate would have had to happen on Monday, 9 February—five days after Chetcuti's term would have ended. 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 min- ister suggested when he closed the acrimo- nious parliamentary debate? The simple answer is no. Even though dif- ferent legal interpretations exist of what the Constitution says, it also includes two pro- visions 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 provi- sions 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 mem- bers of the House." This section clearly outlines that if a reso- lution 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 Chet- cuti's continued permanence in office was conditional on parliament having debated and voted upon a resolution that failed to achieve the two-thirds threshold. 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 Con- suelo Scerri Herrera as the next chief justice to be discussed urgently on Wednesday. It is possibly the reason why President Myri- am Spiteri Debono intervened and spoke to Justice Minister Jonathan Attard and Op- position 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 re- placement is appointed. The debate and vote on Wednesday helped avoid wrangling on the legal inter- pretation of Article 96 in relation to the continued presence in office of the sitting chief justice. Nonetheless, the Speaker's in- terpretation could have also been contest- ed since a precedent already exists where a constitutional role continued to be oc- cupied 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 circum- stance". Indeed, the transcript of the parliamenta- ry committee debate held on 29 July 2020 when this wording was included in the Constitution, shows how then Justice Min- ister Edward Zammit Lewis underscored the importance of the words "in any cir- cumstance". Zammit Lewis had said: "Now, I want to accentuate the emphasis done on the phrase 'in any circumstance' because we have stat- utory retirement… we are saying that al- though the particular judge, in this case the chief justice, would have surpassed the stat- utory 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 en- sure continuity in office of the chief jus- tice until an agreement on the successor is reached. Furthermore, a precedent was created in March 2021 when the term of Ombuds- man Anthony Mifsud came to an end. The wording of the article in the Constitution that deals with the appointment of the om- Chief Justice Mark Chetcuti turned 68 last week, the retirement age for members of the judiciary laid down by the Constitution. 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) KURT SANSONE ksansone@mediatoday.com.mt