What must be kept in mind is that the whole appointment procedure is a political one, not an administrative one. This episode shows how inept the Judiciary's Code of Ethics is when it states that: "Nor shall members of the Judiciary individually accept any advantage or benefit from the Executive except when such advantages or benefits are addressed to the Judiciary collectively." This sentence means that no judge can ever be appointed Chief Justice (CJ) as the CJ appointment bestows an advantage or benefit upon the judge to be so appointed; but this Code of Ethics rule offends the constitutional provision.

When a Judge accepts the CJ appointment, s/he is in breach of the Judiciary's Code of Ethics as s/he is accepting an individual (not a collective) advantage or benefit. It means that when Judge Mark Chetcuti obtained the unanimous approval of the House of Representatives to be appointed Chief Justice, he was in breach of the Code of Ethics for only he individually benefited therefrom. People who live in glass houses should not throw stones. Clearly, the Code of Ethics breaches the constitutional provision that designates the appointment procedure of CJ as a political appointment.

What only remains to be determined is whether in such circumstances Judge Lawrence Mintoff should have forwarded his letter addressed to the Cabinet Secretary and the others after having obtained CJ approval. The Judiciary's Code of Ethics is not stating absolutely that it is never allowed for a judge to communicate with government. Judges communicate frequently with government's lawyers without the need of the CJ's approval. In this case, the judge could not communicate with government in open court as there was no court case pending before him on the subject-matter.

Furthermore, the CJ cannot really take a stand on the communication in question because he potentially, if not actually, entertains a conflict of interest for the longer the government and the opposition take to arrive at an agreed nomination to replace him, this is to his entire advantage and benefit. Nevertheless, the CJ acted correctly when he reported Judge Mintoff to the Commissioner for Standards for the Judiciary but if I were CJ, I would not have demonstrated such haste to report Judge Mintoff to the Standards Commissioner on that very same day that Judge Mintoff's confidential email to the Cabinet Secretary was leaked to the press.

This raises the following question: why did not the CJ leave it to the Justice Minister to report Judge Mintoff to the Judiciary Standards Commissioner once the CJ can be criticised that he has so acted to take advantage of the situation to delay the CJ appointment and thereby benefit from this delay? Possibly the CJ wanted to prevent further harm to the judicial branch of the state by taking prompt action but the CJ - although he did his part - will not necessarily manage to deter further prejudice to the judicial organ of the state, as that is not within his remit. The CJ's perceived partiality in the matter dictated that he should have exercised prudence and let the minister act instead. Further, the Judiciary Code of Ethics does not state what happens when the CJ himself has a conflict of interest (perceived or actual) or, worse still, a personal and direct interest in the matter or has himself been in breach of the same provision of the Code of Ethics under the second limb.

So the conclusions that can reasonably be arrived at are:

(a) Judge Mintoff had a personal and direct interest in the matter;

(b) it was the Opposition that dragged him into this business and it was the PM who approached him and corresponded with him even if the judge might have initiated the WhatsApp messages as a follow up to the meeting (possibly the judge wanted to know where he stood with the CJ appointment);

(c) the PM hinted to the judge, if not making it expressly clear, in the WhatsApp messages, that he was not willing to support the judge's candidature because of age, thereby rendering him biased as he had already decided the issue before even having been deliberated by Cabinet, rendering Cabinet totally irrelevant in the decision-making process;

(d) it was imperative upon the judge to communicate as fast as possible, as he did, with the decision-making body on government's side to draw their attention that age was not a legitimate consideration to reject his nomination;

(e) there was no need for the judge to communicate with the Opposition because the latter supported unreservedly his nomination (even though there is no impediment to this effect in the Judiciary's Code of Ethics - another defect in the Code's drafting)

(e) due to the supervening cause and the necessity and urgency of the matter, the judge had to act as fast as possible, as he effectively did;

(f) nevertheless, the judge must have been aware that to contact the Cabinet Secretary and the others he should have done so through the CJ. But the difficulty here lies in the fact that the latter has a perceived if not actual interest to procrastinate the appointment procedure of a new CJ so as not to bring to an end his constitutionally extended term of office. Moreover, if the CJ were to veto the judge's request to communicate directly with the Cabinet Secretary, the judge would have lost a timely remedy because in the meantime Cabinet might well have adopted the PM's official reason not to appoint the Judge because of his age. Moreover, even if the judge were to subsequently introduce a court case and win it, he would still remain remediless as the Constitutional Court will not remove the new incumbent and appoint Judge Mintoff instead but allow some compensatory remedy. What would happen in practice is that the State Advocate's Office would typically raise several dilatory pleas (juridical interest; legittimu kontradittur, exhaustion of ordinary remedies, etc.) intended to prolong the litigation until the Judge retires so that these proceedings would end up futile, ineffective, and unjust.

In addition, the Judiciary's Code of Ethics does not allow an appeal from the CJ's veto and there is not even the possibility to challenge the CJ from determining whether a communication with government is possible when it is alleged that there is a perceived or actual conflict of interest on the CJ's part, apart from the fact that even if the CJ is so challenged, it will be only himself who decides the challenge in full breach of the principle of administrative justice that no person should be a judge in his own case. Hence, the question is what ought to prevail: justice or law? The government and the State Advocate would firmly argue in favour of the law, but Higher Law, Natural Law, and right reason (including Divine Law) would favour justice.

The Code of Ethics for the Members of the Judiciary, in paragraph 26, reads as follows:

"Although it may be useful and proper to maintain a dialogue between the Bench and other organs of the State, members of the Judiciary shall not however communicate in private with members of the Executive on any matter connected with their duties or functions except through or after express consultation with the Senior Magistrate and/or with the Chief Justice. Nor shall members of the Judiciary individually accept any advantage or benefit from the Executive except when such advantages or benefits are addressed to the Judiciary collectively."

The operative words of this paragraph are: "communicate in private with members of the Executive on any matter connected with their duties or functions". In this case, the judge has not communicated with the Executive on any judicial proceedings that are pending before his court. The duties of a judge are well set out mainly in the Code of Organisation and Civil Procedure, in the Criminal Code, in subsidiary legislation made under these Codes and in other laws. But the communication in question was not about any such duty or function but about an injustice in the making that could only be averted by prompt and effective action.

I see no issue with this communication. If at all the problem lies with the Judiciary Code of Ethics that was not updated following the 2020 constitutional amendments. The problem has emerged only because first the PM and then the Leader of the Opposition wrongly, abusively, unethically, and not in the interest of good governance publicised the names of their preferred candidates for appointment to CJ. This practice nevertheless backfired. Clearly it is not in the interest of the independence of the judiciary, the rule of law, and the integrity of the judicial process and of the judiciary to have the CJ appointed by Parliament: the prospective incumbent should be appointed only by the competent constitutional body - the Judicial Appointments Committee. Until the bipartisan political parties change the appointment procedure of CJ that they wrongly adopted in 2020, more prejudice and harm will continue to be wrought to one of the most important organs of the state that effectively guarantees in a democratic republic based on the rule of law that the legislature and the executive are kept in check.

Then there is the aspect of bullying and harassment of a court employee by an officer of the court. Such acts are criminal in nature and punished under Sub-Title IX of Title VIII of Part II of Book First of the Criminal Code that punishes 'Threats, Private Violence and Harassment'. Such conduct is committed by an advocate who is an officer of the court in terms of articles 30 ('Advocates and legal procurators, when they appear before the superior or inferior courts, shall be deemed to be officers of the court') and 993 ('Any advocate, legal procurator or other officer of the court'), of the Code of Organisation and Civil Procedure. Being an officer of the court, an advocate should not threaten or harass a court deputy registrar when the means how to challenge an assessment of costs ('tassazzjoni') issued by the court registrar is provided for in article 64 the Code of Organisation and Civil Procedure.

The lawyer's conduct is also in breach of article 91 of the Criminal Code in relation to threats. There might be other criminal offences as well that need to be identified. Though it is not excluded that today all these crimes might be time-barred.

Then there is also a breach of the Code of Ethics and Conduct for Advocates. Rule 1(f) of the said Code emphasises 'the advocate's duty to the Court', Rule 2 reiterates that: 'An advocate is an officer of the Court, and should conduct himself or herself accordingly'. Other paragraphs might apply.

Hence the Criminal Code obliges the Commissioner of Police to investigate the criminal offences of threats and harassment whilst the Committee for Advocates and Legal Procurators must likewise investigate the breach of the Code of Ethics and Conduct for Advocates, and this apart from breaches of the Code of Ethics of Members of the House of Representatives.

There is then a breach of article 133 of the Criminal Code ('disclosing official secrets') and article 10 (and possibly others) of the Official Secrets Act. The inevitable question is: will the Official Secrets Act leak of cabinet papers be investigated by the Commissioner of Police? This all raises important questions on how secure are cabinet documents and how can cabinet be trusted with national security issues when a leak has occurred of the Judge Wenzu Mintoff confidential email. A full-blown criminal investigation is of the essence. This apart from an administrative inquiry to establish what measures are needed to ensure that no repetition of such leak occurs. Indeed, how can one trust government with the governance of the state when confidential state secrets and cabinet papers are leaked with such ease? This incident constitutes a threat to national security and to the security of the state.

The source of all this mess is the 2020 constitutional amendment that has depotentiated the Judicial Appointments Committee from appointing a CJ and entrusting such task to inept politicians that have transformed such appointment procedure into a game of chess, a tit for tat, and an entire mess that threatens the independence of the judiciary whilst publicly deriding, humiliating, and ridiculing, individual judges, all at the altar of political partisan expediency erected on misrule of law.

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

Part I was published last week