In political science, a constitutional crisis is a problem or conflict in the function of a state that the constitution or other fundamental governing law is perceived to be unable to resolve.

For instance, one describes it as the crisis that arises out of the failure, or at least a strong risk of failure, of a constitution to perform its central functions. The crisis may arise from a variety of possible causes.

Constitutional crises may arise from conflicts between the different branches and powers that make up the state, namely the executive, the legislative and the judicial.

In our system of government, government officials are supposed to obey judicial orders and decisions specifically directed to them. This is true even if they believe that the judge has interpreted the law incorrectly. Therefore, defying or circumventing a direct judicial order or decision would also be tantamount to precipitating a constitutional crisis.

On more than one occasion, Prime Minister Robert Abela has implied that the courts are biased in favour of the Nationalist Party. The one that clearly comes to mind is the heated parliamentary debate about the court's decision that confirmed the hospitals' deal as being officially null and void. On other occasions, he implied that whenever the PN took any political or national grievance to court, it was because they were “playing home”.

Comments like that undermine the functions of the court and could distort the rule of law in a democratic country.

I do not wish to be drawn into any unnecessary political and partisan controversy, so I will be quite apolitical in my comments here.

Once our prime minister provides sufficient evidence to prove his allegation that our judiciary is somehow showing bias whenever any legal dispute with political overtones and connotations is thrown on its lap, then this surely amounts to a constitutional crisis and should be immediately redressed. The government would be obliged to solve such a constitutional crisis and restore the Constitution to its working condition.

If, however, Abela’s allegation results unfounded, then he should be man enough to publicly apologise to our judiciary. Indeed, as Prime Minister, he would be duty-bound to do so. The judiciary must never be played around with in order to score political points.

The judiciary is constantly exposed to the winds of criticism, but, in a democratic society as ours, this is acceptable so long as it is done in the ordinary right of criticising and in good faith.

But when one imputes improper motives to those taking part in the administration of justice, one would be acting in malice or attempting to impair the administration of justice. Robust criticism is one thing; direct intimidation by a member of the executive of a judge sitting in open court is quite another.

We need to protect our fair and impartial courts. The importance of fair and impartial courts and the role of judicial independence in achieving that goal can never be stressed enough.

The judicary is important to this discussion because of its leadership role, because of the enduring salience of certain questions that appear on the court’s docket, and because it is easy to forget that every one of our courts is unique in many ways and is not characteristic of most judging in this country.

Why are fair and impartial courts important? And how does judicial independence preserve fairness and impartiality in our courts? Perhaps the questions are too obvious.

If you are an originalist, the answers are easy. The drafters and the ratifiers of our fundamental law considered that a fair and impartial judiciary, one that followed the law and was not biased, partisan, intimidated or seeking preferment, was central to a republican form of government. They believed that judicial independence was critical to fairness and impartiality. They thought of judicial independence in its two facets: the decisional independence of the judge from outside pressures or inducements when deciding a case, and the independence of the judicial branch as a whole, as a separate branch of three.

The Constitution reflects this view. It provides for a separate branch of judges who themselves are insulated from pressure by lifetime tenure during good behaviour and by a guaranteed livelihood. It provides that the judges are entirely divorced from the ebb and flow of political life. Their initial appointment is no longer through the political branches, though they can still be impeached. They are also autonomous. They are not confined by law or by the assent of the other branches. Moreover, for much of their activity, they would be sharing the judicial power with citizens through the jury trial, which has such a prominent place in our traditions.

It may truly be said that the judiciary has neither force nor will but merely judgement and must ultimately depend upon the aid of the executive arm, even for the efficacy of its judgments. Liberty can have nothing to fear from the judiciary alone; it would have everything to fear from its union with either of the other branches of power, which is why separation and independence are so important.

We need to have faith in the independence, fairness and impartiality of our judges because we look to our courts as the place where we can get a fair shake, whether our complaint is with the government, a business, or a neighbour.