When tension arises between a judge and a prime minister, it typically signifies a serious constitutional crisis, threatening the separation of powers and the independence of the judiciary. Such conflicts often involve accusations of political interference in judicial appointments, attempts to influence court cases, or personal disputes, which can severely damage public trust in institutions.
Most people don't exactly enjoy watching the branches of government clash. When the constitutional court strikes down an executive order, when parliament moves to impeach a sitting judge, or when the prime minister or any other minister subtly bypasses parliamentary scrutiny, the conflict can feel tense and even unsettling. But is this conflict truly harmful to our democracy? Is it a flaw in our system based on a separation of powers, or is it proof of Malta's political ingenuity?
What we understand as a "separation of powers" is more complex than the uninterrupted autonomy of each branch. In reality, a healthy tension between the legislative, executive, and judicial branches prevents uninhibited power.
Sitting judge Wenzu Mintoff has, under oath, publicly and formally accused Prime Minister Robert Abela of meddling in judicial processes, pressuring court staff, or compromising the impartiality of the judiciary. It came with a background of intense political conflict over the appointment of the next chief justice, leading to contested claims that the state is on the brink of a constitutional crisis, potentially casting doubt on the validity and legality of any eventual appointment.
In doing so, Mintoff triggered a significant controversy, as it challenged the fundamental judicial principles of impartiality, independence, and the appearance of propriety. Such an action has led to accusations that the judiciary is being "politicised" or acting as "pawns" in an evolving political strategy.
It is questionable whether it was appropriate and ethical for Judge Wenzu Mintoff to have done so with so much vehemence.
Most states give guidance through codes of ethics on this issue, but if there is one common factor in such codes, it is that sitting members of the judiciary are absolutely not free to engage in the political arena.
Partisan politics and the bench have a recently marked history in Malta. Judges Toni Abela, Wenzu Mintoff himself, Grazio Mercieca and the late Philip Sciberras all made it to the bench after militating in the Labour Party.
Under various nationalist administrations, this was common practice, too.
Judicial ethics, in simple words, refer to standards and practices to which members of the judiciary must adhere. These ethics are necessary to maintain not only the constitutional system of checks and balances but also the perception of it. In that sense, the ethics to be followed by judges are not mere unsaid rules but embody mandatory constitutional as well as institutional requirements necessary to maintain the legitimacy of our legal system and public trust.
By sheer coincidence, just four days before sitting judge Wenzu Mintoff sent his damning letter to the Cabinet, in New Zealand, a similar incident happened.
District Court Judge Ema Aitken crossed the line between judicial neutrality and political debate when she interrupted a speech by New Zealand First leader Winston Peters by calling him a liar. As a result, the Judicial Conduct Panel is inquiring into her conduct with a high probability of a recommendation that she be removed from the bench.
Both incidents appear to have violated the standards of comity, the separation of powers and mutual respect and restraint that exist between the judiciary, the executive and Parliament in order to maintain public confidence in a constitutional system.
When under pressure from increasingly aggressive executive and legislative branches, the judicial branch's best option is to stick to its guns and simply do its job as it usually would.
Undoubtedly, Judge Mintoff should have known better than to intervene in public in this way.
Yet, is the judiciary expected to take a passive approach to other branches making power grabs, and is it expected that it waits out the leaders behind the anti-democratic attitudes towards the system?
A standard code of ethics provides that a judge shall not engage in political activity that is inconsistent with the independence, integrity, or impartiality of the judiciary but does not include an express exception for political activity related to the administration of justice.
Although such activity may still be implicitly permitted as not inconsistent with the independence, integrity, or impartiality of the judiciary, the absence of explicit permission may discourage judges from engaging in such activity and subject them to criticism if they do.
Ideally, a judicial appointment brings with it substantial retirement from the world and a degree of public and social isolation so that the judge cannot be said to be compromised or the judge's impartiality brought into question.
But then again, the once-rare public criticism of judges has now become commonplace, and the once-commonplace defence of judges has now become rare, too. This is often cited as a valid reason for judges to speak out.
Judge Mintoff might have crossed the Rubicon, thus irremediably compromising and ruining his chances of making it to the top judicial post, but his stunning revelations based on a balance of probabilities have undoubtedly cornered Prime Minister Robert Abela, and the public, as of right, expect answers to all that has been called into question.
Mintoff might be in breach of judicial ethics, but in the eyes of the public, he will certainly be admired for his sacrifice, courage and steadfastness in upholding the truth.