On 4 February 2026, the term of office of Chief Justice Mark Chetcuti came to an end after he attained the constitutionally imposed retirement age of 68 years. He will remain in office pending the selection of a new Chief Justice to replace him whenever that materialises.
The Constitution was amended in 2020 to provide that the new incumbent would have to be approved by at least a two-thirds majority vote of the members of the House of Representatives. In the case of Chief Justice Mark Chetcuti, he was approved by a unanimous resolution of the House even though at that time there was no such requirement for parliamentary approval. The position at law was that he could have been appointed by the executive with no parliamentary involvement as had been the position since 1964 till 2020.
In 2016, the Constitution was altered so that all the members of the judiciary, that is, judges and magistrates, except for the Chief Justice, would henceforth be appointed by the President of Malta on the basis of a short list of potential nominees submitted to the President of Malta by the Judicial Appointments Committee (JAC), a sub-committee of the Commission for the Administration of Justice. This was indeed a much salutary reform that improved considerably the selection process of the members of the judiciary, bar the Chief Justice, for the following reasons:
First, the judicial appointment process was depoliticised. It is neither the Executive, as it had been between 1964 to 2016, nor the Legislature as was the case with the unanimous appointment of Chief Justice Mark Chetcuti and, post-2020 to date, as is the position with the parliamentary appointment of Chief Justice, that nevertheless interferes within the judicial organ of the state much in breach of the separation of powers doctrine.
Second, the appointment procedure before the JAC is based purely on merit not on the candidate's sympathy with, or past affiliation to, or alignment with, the political party in government. Prior to 2016, multiple judges and magistrates were appointed not necessarily on the basis of merit but because they had militated or actively supported the party in government either by having contested a general election but failed to be returned to the House, or had served as MP or Parliamentary Secretary in previous legislatures, or had served in the government's political party's structures, or somehow had a connection with the party in government, or were respected by the party in government.
However, especially when no reasonable cooling off period of more than at least three years had elapsed between the date of appointment of the new incumbent to judicial office and his or her complete withdrawal from the political partisan scene, such appointment process always begged the question on its appropriateness, suitability, correctness, and whether the new incumbent would rise above his or her previous politically partisan ties.
Third, objective qualitative criteria have been added to the previous sole quantitative criterion that the Constitution hitherto established since 1964 for the appointment of judge (12 years as an advocate or advocate/magistrate) and magistrate (7 years as an advocate).
The situation today is that - bar the case of the Chief Justice - judicial appointments are no longer political appointments. It is perhaps only in the case of the judiciary that, concretely, appointments in the public administration are based on merit. It is true that the Public Administration Act states that appointments are to be based on merit but it is one thing what the law says, and it is quite another what sometimes happens in practice. In the public sector the situation is purely unmeritorious as there are no calls for applications issued for chairpersons and CEOs of the various authorities and state entities, and the Appointments Committee of the House of Representatives is nothing but an official rubber stamp of the Prime Minister's decision.
Nevertheless, as seen in January 2026 in the press through the public exchange of correspondence between the Prime Minister and the Leader of the Opposition, the appointment of a Chief Justice remains the product of a parliamentary political decision. Now the Chief Justice should never ever be a political appointee, whether by government or the legislature, as one wants to safeguard that office's independence from the two other organs of the state and to remove any actual or perceived pressure, influence, or bias that can taint any future decisions delivered by the Chief Justice.
But, being a political appointee implies that a chief justice would be indebted to those persons that appoint him or her and, consequently, may be tempted to sin or actually does sin on partiality. It might well be that whoever is appointed to that office is a person of high integrity, moral standing, upright, honest, and - in a nutshell - satisfies all the qualitative objective criteria for judicial office established by the JAC. But to his or her detriment, that appointment will be perennially stained by political partisanism and s/he must regrettably shoulder this political appointee mark until the term of office comes to an end or s/he seeks early retirement.
Furthermore, there are no constitutionally established qualitative criteria on the basis whereof a decision to appoint a Chief Justice must be reached by parliament. In the case of the JAC there are very strict and rigorous criteria that must be met. Unfortunately, this is not the case of the parliamentary appointment of a Chief Justice. Once again, this is farcesque. For the record, it must be noted that the Prime Minister in his 31 January 2026 letter to his buddy penpal, the Leader of the Opposition, did list a handful of selection criteria but these were unilaterally self-imposed and incomplete, and there appears to be no public hint so far of acceptance thereof by the Leader of the Opposition.
What jars is that whilst to appoint a messenger and other lower grades in the civil service selection criteria are laid down, the political parties in government ensured that the Constitution provides none in the case of the parliamentary appointment of a Chief Justice so that they would not have their hands tied down accountability wise! And should unwritten criteria exist or be agreed upon by parliament, or the parliamentary political parties, will these criteria shift each time a Chief Justice is to be appointed depending on the whims and caprice of either the Prime Minister or the Leader of the Opposition, or both?
The Venice Commission did recommend that the appointment of Chief Justice should be depoliticised and that the Judicial Appointments Committee should be the competent organ of the state to carry out such appointment procedure. Needless to say, such recommendation has fallen on deaf ears and is now relegated to the annals of history. This is what the Venice Commission, in relevant part, recommended on the appointment of the Chief Justice on 19 June 2020:
"41. The Proposals provide that the Chief Justice be elected by a two-thirds majority in Parliament. Even though there was no obligation to do so, the current Chief Justice was elected upon agreement with the opposition and was approved by the House of Representatives unanimously.
42. The Venice Commission had recommended appointing the Chief Justice in the same manner as other judges. Under the system envisaged by the Proposals that would be an appointment by the President upon a proposal of three candidates by the JAC.
43. For the Venice Commission, the important element is not that the procedure for the Chief Justice be exactly the same as the one for ordinary judges and magistrates, but that the appointment of the Chief Justice be depoliticised as much as possible. In that regard, a two-thirds majority in Parliament would also lead to depoliticization, because both the parties would have to seek agreement on a 'neutral' candidate, acceptable to a wide majority in Parliament. Cross party consensus does not guarantee judicial independence, but strengthens the credibility of the choice made for such an important constitutional post. There is however a danger that this could lead to a lobbying by candidates among politicians.
44. Another issue arises in this context. Any requirement of a qualified majority for an election to high office risks ending in deadlock. Even if the political parties in Malta should be commended that they seem able to reach agreement on such elections, it cannot be excluded that such a deadlock could arise in the future. The Chief Justice has such an important position that this situation must be avoided. An extension of the mandate of the incumbent Chief Justice can be envisaged, but this cannot be a solution if s/he can no longer exercise the office due to health reasons. A suitable anti-deadlock mechanism might be that the Chief Justice be elected by the judges of the Supreme Court if there is a prolonged stalemate in Parliament for the election by a qualified majority in Parliament."
Nonetheless, in Malta, politicians never release voluntarily - except at gunpoint - one iota of power they enjoy. So, although there is a special, competent, impartial, unpolitical, and unpartisan constitutional state mechanism that is tasked to appoint the judiciary (the JAC), the politicians have reserved for themselves the right to decide whom to appoint Chief Justice and on arbitrary criteria of their own making or unmaking. Thus, one asks, tongue in cheek: why have a JAC when the most important judicial office of Chief Justice is excluded from such non-partisan non-political appointment process?
That politicians want to grab all the reigns of the state is very clear from Maltese Law. When Chief Justice Emeritus Joseph Said Pullicino served as Ombudsman and had asked me to draft amendments to the Ombudsman Act so that the Office of Ombudsman could benefit from sectoral ombudsmen, the draft bill obviously and naturally provided that it ought to be the Ombudsman who appoints the sectoral Ombudsmen once they fall within the ambit of that office. But what resulted? The Nationalist government ensured that the appointment power was instead vested in the Prime Minister and the Leader of the Opposition and, should no person be agreed upon following the passage of a statutory predetermined time, then it would be the Ombudsman that would by default make the appointment. That absurd, Kafkaesque I would add, situation prevails to date!
When I joined the Broadcasting Authority as its Chief Executive, I realised that the broadcasting regulator - a constitutional independent broadcasting authority - was not only toothless by way of enforcement powers but licensed only private community radio stations, private national radio stations, and private television stations. Cable radio and cable television, satellite radio and satellite television, the Public Broadcasting Services' radio and television channels (except for one station - if I remember correctly, FM Bronja), and digital audio broadcasting were all licensed by the government. This was also the case with the relay broadcasting station Deutsche Welle and the shortwave radio station Voice of the Mediterranean. Later on, when the sole eight-year licence of a PBS Ltd. channel issued by the Broadcasting Authority come to term, the then Nationalist government decided that it should no longer be the Broadcasting Authority to licence FM Bronja but government itself. Broadcasting licencing was and continues to be thus not exclusive to the Broadcasting Authority as government is usurping the Authority of its broadcasting functions.
Hence, there existed a broadcasting regulator with a very narrow remit to licence broadcasting stations and few powers to enforce broadcasting laws! By the time I resigned from CEO, all commercial radio and television stations were (and continue to be) licensed by the Broadcasting Authority except for PBS Ltd that was and continues to be licensed by government as its own propaganda broadcasting services. There was a failed attempt to have PBS radio and television stations licensed by the Broadcasting Authority but needless to say a Nationalist government had scuttled the draft bill that the Broadcasting Authority had unanimously approved and recommended its enactment to government.
The moral of the story is therefore clear. Politicians will do all it takes to amass power and never cede it or co-share it with other organs of the state or allow the public to participate in the decision making process. Reflecting on these and other examples embedded in Maltese Law, the only inevitable conclusion that can be drawn therefrom is that since 1964, Malta has been ruled as an autocracy not as a democracy.
The procedure of selecting a new Chief Justice adopted in 2020 and the way how it is being implemented so far in 2026 is nothing but a complete mess. It is clear from the reported events in the newspapers of January and February 2026 that this appointment procedure is unworkable not only in theory but also in practice. Politicians should not, and cannot be, trusted with such appointment. What parliament must do is to alter the Constitution so that the Chief Justice is also appointed by the JAC as the Venice Commission advised. The question is: will parliament listen to the wise words of the Venice Commission? So far it has not, and there are no clear and tangible indications that it will.
Kevin Aquilina is Professor Law at the Faculty of Laws, University of Malta