We all recall how, at the height of the raging controversy surrounding the fast-paced magisterial inquiries reform, two prominent former chief justices could not resist having their say in the local media. This gave rise to a still-pondered question today of whether it was appropriate and ethical for them to have done so with so much vehemence.

Indeed, Minister Jonathan Attard had described remarks made by Chief Justice Emeritus Silvio Camilleri as partisan and unworthy of a former judge. He was personally attacked in Parliament and on Labour Party television with insults and character assassination to the point that a 90-page document carrying 546 comments that the former chief justice made against the government on Times of Malta was tabled in Parliament.

Just a week later, another former chief justice, Emeritus Joseph Said Pullicino, publicly stated that proposals to limit the rights of any person to trigger a magisterial inquiry and related plans to protect civil servants from criminal liability fatally undermine the rule of law. True, perhaps the government and Labour Party's aftermath reactionary attack on him was not so intense and direct as was that aimed at the person of Silvio Camilleri, but it still called into question the profile that retired members of the judiciary should keep in society, more so when political controversies come into play.

Moving beyond one's self-identity as a judge, even more so as a chief justice, is a challenge and an opportunity. However, no matter how successful a former judge will be at leaving the "judge" in the past, to others, a judge is always a judge.

Whether walking into a local restaurant or attending a community event, former judges will continue to be addressed as "judge". Judges will be hired for jobs not only for their judicial experience but also for the positive "label" that having a former judge will bring. There are ethical implications, though, for this continuing identification.

Most states give guidance through codes of ethics on this issue, but if there is one common factor in such codes, it is that retired members of the judiciary become free to engage in the political arena.

Former judges are likely the most effective speakers and activists on issues of justice, fairness and protecting judicial independence from outside influence. However, extra care is required when former judges partake in partisan politics or are visible in causes unrelated to the justice system.

In reality, Joseph Said Pullicino and Silvio Camilleri can reasonably be considered as not the first nor likely the last retired judges to enter the political fray. In March 2021, on the occasion of his retirement from the bench, Judge Joseph Zammit McKeon used his last sitting to warn of "trouble" for the country if the authorities continue to allow the judiciary to be denigrated, especially on social media.

Partisan politics and the bench have a recently marked history in Malta. However, the usual flow is from partisan political service to impartial judicial arbiter, not the opposite. There's more than one example to mention. Judges Toni Abela, Wenzu Mintoff, Grazio Mercieca and Philip Sciberras all made it to the bench after militating in the Labour Party.

Under various Nationalist administrations, this was common practice, too.

Rare is traffic the other way: from the bench to the political arena. Partisan political involvement by retired judges is not restricted to social life, although that is the most overt form. Some implicitly endorse political candidates, appear in the background of an MP's activity and insert themselves into public debate on controversial public issues.

Many of their former judicial colleagues likely bristle at such political and social involvement, precisely because the former judges are often referred to as "former chief justices of Malta" or the like. Often it is their former judicial status that attracts attention to their actions. If they were ordinary citizens, the media would be unlikely to be interested in what they have to say. It is precisely their pedigree as former judges that gives them a platform that they would otherwise not have.

And therein might lie the problem.

This commingling of retired members of the judiciary and politics harms the public perception of the judiciary as an institution that is independent and nonpartisan. The more former judges leave an impact because of their "judge status", the more difficult it becomes for members of the public to distinguish between active and retired judges. Such actions contribute to the public perception that judges are simply politicians in robes. Politically active former judges thus make it harder for current judges to do their job.

So why did two former chief justices get involved in politics?

The answer is that they can. Ethical rules for judges warn against any sort of political involvement. So strict is such a prohibition that, for example, judges were prohibited from voting under the Canada Elections Act until the 1980s. However, once a judge steps down from the bench, the ethical rules for judges do not apply. Those who return to the practice of law become governed by the Chamber of Advocates' code of ethics, which has precious little to say about former judges.

Yet, perhaps just because they can does not make it right. Retired members of the judiciary should exercise a little more restraint before entering the political fray.

While the Code of Judicial Conduct may no longer govern their speech and actions, it should still guide them.

Dr Mark Said is a lawyer