Issue link: https://maltatoday.uberflip.com/i/1543144
7 maltatoday | SUNDAY • 8 FEBRUARY 2026 ANALYSIS on the brink of a constitutional crisis? nominate Judge Consuelo Scerri Herrera as chief justice would have got the impression that Malta was manufactured crisis intended to score political brownie points? Constitution. He will remain in office until his successor is appointed by parliament (Photo: James Bianchi/MaltaToday) budsman is the same as that for chief jus- tice. At the time, the government and Opposi- tion had not yet agreed on Mifsud's replace- ment and it was accepted that according to the Constitution he should remain in office until a successor is appointed by parlia- ment. 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 constitu- tional crisis developing because of a vacant office? This is where the second constitu- tional 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 un- able 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 ap- point 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 interpreta- tion 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 nev- er end up in a situation where the post of chief justice is vacant because the Consti- tution contemplates at least two scenarios that prevent this from happening. This is why disagreement over the nom- ination of Judge Consuelo Scerri Herrera and the prime minister's subsequent deci- sion to plough ahead with a motion put- ting her name forward, could have never amounted to an "unprecedented constitu- tional crisis". If anything, it was a political crisis of the prime minister's making when he refused to continue engaging with the Opposi- tion leader until consensus is reached on a name. The prime minister insisted the government's motion proposing Judge Consuelo Scerri Herrera as chief justice helped avoid a 'constitutional crisis' (Photo: James Bianchi/MaltaToday) The Opposition leader (left) 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) 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)