Issue link: https://maltatoday.uberflip.com/i/1543288
THE appointment of outgoing Chief Justice Mark Chetcuti in 2020 was widely hailed as a his- toric moment in the evolution of Maltese judicial appointments. For the first time, the highest office within the judiciary was filled following consensus be- tween the government and the Opposition. This was particularly signif- icant since, at the time, the Maltese Constitution neither required consensus nor a two- thirds parliamentary majority for such an appointment. That requirement was only intro- duced later that same year as part of a broader constitution- al reform aimed at shifting the process away from an execu- tive-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 sys- tem 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 insulat- ed the judiciary from partisan politics. It lacked transparency and failed to secure the sepa- ration of powers so forcefully advocated by Montesquieu, thereby weakening the system of checks and balances expect- ed of a modern democracy. Concerns about excessive ex- ecutive influence over judicial appointments were repeat- edly raised by bodies such as the Venice Commission. To his credit, the then Opposi- tion 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 inde- pendence could not be left to executive restraint or Opposi- tion 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 ap- pointing a chief justice was a commendable reform. The cre- ation of the Judicial Appoint- ments 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 achieve- ment 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 over- ly 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 situ- ation solely to failed dialogue or political obstinacy, that ex- planation only tells part of the story. The immediate trigger may have been the Opposition leader's rejection of a highly competent, academically ac- complished, efficient, erudite and widely respected lady jus- tice without explanation, but the real problem lies deeper. The Constitution provides no fallback mechanism when con- sensus fails, leaving the coun- try vulnerable to institutional paralysis. It is particularly disappoint- ing 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 mouth- piece for an extremist faction within his party—a faction for whom the national inter- est 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 po- larised systems, where intran- sigence is often mistaken for political strength, supermajor- ities 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 automat- ic, rule-based fallback mecha- nisms. One option is seniori- ty-based appointment, where the most senior eligible justice assumes office. This rewards experience and continuity and removes political bargaining, though it may elevate a candi- date lacking leadership skills. Another option is threshold re- duction, whereby the required two-thirds majority drops to a simple majority after a defined period. While imperfect, this approach prevents indefinite stalemate and encourages gen- uine negotiations, as the Op- position knows its influence is time limited. Given the evident presence of bad faith in the current im- passe, threshold reduction appears to be the most prag- matic solution for the future. It minimises the capacity for obstruction while preserving the likelihood that the eventual appointee will be both judicial- ly competent and administra- tively 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 bipar- tisan agreement should have preceded the tabling of a par- liamentary motion reflects a troubling lack of political ma- turity and a lack of apprecia- tion for constitutional urgency. Had government not acted in a timely fashion, Malta risked a full-blown constitutional cri- sis, with the office of chief jus- tice left vacant and no resolu- tion in sight. While the Opposition unde- niably enjoys a constitutional veto, the question is no longer whether it should compromise, but how responsibly it should exercise that veto— particular- ly in light of the government's unprecedented electoral man- date. One can only hope that reason prevails over political brinkmanship, and that this impasse is resolved before last- ing damage is inflicted on Mal- ta's judicial institutions. 6 maltatoday | SUNDAY • 15 FEBRUARY 2026 OPINION Deborah Schembri Lawyer and former parliamentary secretary The constitutional cost of political intransigence 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 Photo: James Bianchi/MaltaToday