An earth-shattering tremor hit Malta last Tuesday. It was measured at scale 10 of the politico-judicial Richter magnitude scale. This earthquake was provoked by the unlawful leakage of a confidential email addressed by Mr Justice Wenzu Mintoff to the Cabinet Secretary and copied to others, namely the Prime Minister, Deputy PM, justice minister, and President of Malta. The question that must be asked is: did Judge Mintoff breach the Code of Ethics for the Members of the Judiciary in his unprecedented communication with the Cabinet Secretary and the others?

According to the Judge Mintoff sworn declaration, in February 2026, the PM met once judge to discuss the impending appointment of Chief Justice ('CJ'). Subsequently there was a WhatsApp communication between the two on the same subject.

The Nationalist Party had proposed, at the latest round of negotiations, Judge Mintoff as their preferred candidate for the office of CJ but the PM proposed another judge.

To date, the Opposition has not rebuffed publicly the government's preferred candidate but, by implication, by proposing their own candidate - Judge Mintoff - the Opposition is rebuking the PM's nominee. The PM has not however expressed publicly his view on the suitability of Judge Mintoff, the PN-proposed candidate. The lethargy in providing public feedback thereto indicates that the premier is unwilling to proceed with this appointment.

Following the PM-Judge Mintoff meeting/messaging, the Judge observed that the PM was unwilling to accept the PN's nomination officially because of political considerations (the PM would be perceived weak by his power base and would strengthen the hands of the Leader of the Opposition) and the Judge's age. It is not excluded that personal animosity might have existed as well in the past between the PM and the Judge.

Political considerations and personal animosity apart that should never be factored in state appointments; the question of age poses it serious difficulties to exclude Judge Mintoff from the CJ appointment simply because it amounts to age discrimination and, therefore, runs counter to Human Rights Law. In this perspective, one appreciates better the impelling requirement for the Judge to write directly and timely to the decision-making body - Cabinet - so that they be appeased that, apart from age (itself unconstitutional) there might be irrelevant considerations (themselves illegal in terms of Administrative Law) that were being mooted as there was the likelihood that any or all these reasons be submitted by the PM for the Judge's exclusion from the CJ appointment and considered and approved by Cabinet.

First and foremost, the Judge has a direct and personal interest in the matter. According to the Judge's sworn statement, he was dragged into this matter by the PM who contacted the Judge to speak about the pending appointment of CJ possibly after the Opposition publicly supported Judge Mintoff's candidature. Thus, it was not the Judge who communicated first with the PM but vice-versa.

The fact that the Judge spoke to the PM does not render him in breach of the Judiciary's Code of Ethics as the Code cannot be brought as a reason to implement a provision in the Constitution. Hence, it is the Code of Ethics that must give way, not the Constitution (see article 6 of the Constitution). The PM acted correctly when deciding to communicate with the Judge and was acting in full respect of the constitutional provision. As a matter of fact, it was the PM's duty to speak to the Judge before deciding whether to endorse or otherwise the Judge's nomination. It is, what in legal doctrine, is referred to as an inherent power - a function that does not need to be written down black on white in the law but can be arrived at through necessary intendment.

Subsequently, once it transpired that the PM was unwilling to proceed with the nomination on the basis of age, political considerations, and - possibly - personal animosity, Judge Mintoff communicated with Cabinet to set out his version of events. This is nothing but the implementation of a sacred principle of Natural Justice - to hear the other party (audi et alteram partem) for Judge Mintoff would not be invited at the Cabinet meeting when the PM reports on his meeting/messaging with the Judge and that was the only way to communicate with Cabinet to set the record straight from his part. Hence the need for the statement to be subscribed on oath.

Second, it appeared - correctly - to the Judge that the consideration of his candidature was going to be prejudiced and rejected because of illegal and irrelevant considerations, valid grounds for judicial review of executive action. Remember that he is 66 years old and judges retire at 68. This would have probably been presented to Cabinet as the 'official' minuted reason for rejecting his candidature though the Judge thought that there were also ulterior motives as well. The Judge also thought that the PM was biased against his candidature on the basis of the content of the conversation in the WhatsApp messages.

Third, appointments to high level public offices are normally approved by Cabinet. Now if a person happens to be interested in an appointment - and the Judge was such a person because (i) the Opposition adopted him as their own preferred candidate; and (ii) the PM has contacted him directly on the matter, then there is no doubt, objectively speaking, that the Judge has a direct and personal interest in the matter. Not only so, but if the Judge thought that Cabinet might be misled by the PM in his reporting on the meeting with the Judge, or that the Judge's views might not be well reported to Cabinet, the Judge had a legal and moral duty to pre-emptively warn the Cabinet that if they were to exclude his candidature on the basis of age, political considerations, and possibly personal animosity, Cabinet would itself be acting illegally. For even Cabinet is bound by law (even though they might think that they are above the law!).

Fourth, it appears that the PM, after the meeting and in the WhatsApp message/s informed the Judge that the former was not considering the latter appointable solely because of his age. This, in itself, runs counter to Human Rights Law as it is a form of age discrimination. Political considerations and bias also nullify a Cabinet decision in terms of Administrative Law.

Fifth, the Judge - who was dragged into this episode first by the Opposition and then by the PM (and it was never the case that he approached them first) - has a right to set the record straight in full respect of the principles of natural justice and inform the Cabinet that if they were to adopt the Prime Minister's official reason for excluding him from the CJ appointment, they would be breaching Human Rights Law (age discrimination), Administrative Law (irrelevant considerations and bias) as well as committing an injustice which could not be remedied, apart from being actionable at law.

Sixth, if the Judge was going to be the subject of a decision that would have affected him directly and personally, he had the right to write directly to the Cabinet Secretary and the others. The Cabinet decision in question did not deal with any pending litigation in the Judge's Court, his caseload, or any function which he has exercised, was exercising, or was about to exercise, but about the Judge himself limitedly to the promotion exercise.

Seventh, the Judge - according to the Judiciary Code of Ethics cannot communicate with the government except following approval by the CJ. In the instant case, the Judge is not communicating with government in the ordinary course of the exercise of his judicial duties and functions but because of a supervening cause dictated by the 2020 constitutional amendments that has made it imperative upon him to communicate with government because of the meeting and message/s exchanged, the Judge's nomination by the Opposition, and the PM's perceived unjust reason to exclude Judge Mintoff from the race simply because of age discrimination. I do therefore understand and appreciate that to remedy such potential injustice Higher Law dictates that to delay would render a future remedy, if ever remotely possible to  be granted, completely ineffective. It is useless to institute court proceedings of a constitutional nature that will probably be decided after the Judge would well have attained retirement age.

Nor is it in the public interest not to appoint a new CJ until some years down the line the constitutional cases would have been definitively concluded. It was indeed necessary, due to this supervening cause over which the Judge had no control, to avert a probable injustice in his regard at the hands of the Cabinet of Ministers. As we say in law, necessity has no law (or no Code of Ethics for that matter!).

Finally, the Judiciary Code of Ethics needs updating to take on board the possibility of communication between a judge on the one hand, and the Prime Minister and the Leader of the Opposition on the other, in the sole case of CJ appointment nominations. For how can the latter two public officers propose a judge for appointment to CJ unless they would have had the decency to ask him or her whether the nominee-to-be would be interested in that office? The 2020 constitutional amendments have rendered redundant that part of the Judiciary Code of Ethics concerning direct communication between a Judge and government without the permission of the CJ in the case of a CJ appointment.

Eighth, the purpose of the Judge's communication with cabinet was simply to draw their attention that (i) age discrimination is an irrelevant consideration in the determination of whom to appoint CJ; (ii) that the PM had already made up his mind to exclude the Judge from the appointment and, therefore was biased and might have entertained personal animosity; and (iii) because of these reasons, the PM was already prejudiced against the Judge and was not the ideal person to preside cabinet and participate in its deliberations. Indeed, in a democratic society based on the rule of law, the PM would have declared a conflict of interest, abstained, and let Cabinet reach its own decision. Of course, Cabinet can decide to approve Judge Mintoff as the forthcoming CJ, bearing in mind that the Opposition already agree therewith, or commit an injustice and illegality - which is something not beyond cabinet to do as past experience and court judgments have shown.

Kevin Aquilina is Professor of Law at the Faculty of Laws of the University of Malta

Part II will be published next week