Our country prides itself on having a constitution that glows with hallowed provisions guaranteeing fundamental human rights, the rule of law, and justice.

The recent run-up to appointing the next Chief Justice clearly shows that the method of appointment, in the best interests of the administration of justice, needs a radical change to prevent it from being over-politicised.

When courts are perceived as subject to the whims of political parties, directly controlling the selection of judges or trying to place loyalists in key positions, public trust in the justice system erodes. The public perception would then be that key judicial appointments and promotions are based on political loyalty rather than professional merit.

It is worthwhile to recall that the Venice Commission, in a statement published on August 30, 2021, recommended the depoliticisation of the appointment of the Chief Justice. It went on to comment that, although judicial appointments are now made by the Judicial Appointments Committee (JAC), the same cannot be said for the appointment of the Chief Justice.

The requirement of a minimum two-thirds majority for such an important office, although instrumental in ensuring that both parties in Parliament would have to neutrally assent to a specific contender for the appointment of this judicial post to take place, still leaves concern relating to the possibility of lobbying politicians for the post.

Such lobbying could easily lead to an unwarranted stalemate, especially in a parliamentary system like Malta's, and this is why an anti-deadlock mechanism is needed.

Anti-deadlock mechanisms for appointing a Chief Justice are designed to prevent judicial vacancies, political stagnation, and the erosion of public trust when consensus fails. Comparative studies reveal that effective mechanisms generally involve a shift from high-threshold, qualified majority voting to simpler majorities after repeated failures, or the interim continuation of the incumbent's term.

The more formal rights and competences the opposition is given within our constitutional and parliamentary system, the greater its responsibility not to misuse these powers but to conduct its opposition in a way loyal to the basic system and the idea of legitimate and efficient democratic majority rule.

This, however, is not an issue that can be legally regulated or perceived as any form of formal responsibility but is rather to be seen as a political and moral obligation.

Indeed, a raging debate and controversies erupted like a volcano when the government unexpectedly came out with the nomination of Judge Consuelo Scerri Herrera as its preferred candidate to occupy the post of Chief Justice, with the PN vehemently opposing such a nomination, despite reliable allegations that the PN leader had initially and wilfully accepted and approved such a nomination.

Yet the government's proposal for an anti-deadlock mechanism has consistently been similar to that adopted for the appointment of the Commissioner for Standards in Public Life, Chief Justice Emeritus Joseph Azzopardi, namely a 2/3 majority first, and then a simple majority. While preventing vacancies, lowering thresholds can reduce the incentive for political parties to compromise, allowing the majority to bypass the opposition.

The shift to a simple majority, while solving the deadlock, can increase the perception that the judiciary is politicised. The opposition may misuse veto powers, or the government may use the mechanism to force through partisan candidates.

That mechanism appears to be adopted only in Malta, as the majority of other EU countries adopted a step-down majority system.

It would be best to shift the power of nomination or selection from Parliament and the Executive to an independent Judicial Appointments Committee (JAC).

England and Wales utilise an independent JAC to aim for open, transparent, and merit-based appointments.

In order to remove incentives to block appointments as far as reasonably possible, the institutional design must be such as to make the effect of blockage as unforeseeable as reasonably possible. To that end, appointments, or the nominations prerequisite to them, must be taken out of the hands of the normally competent body or bodies in case of failure to nominate or appoint in time, and have an alternative mechanism step in.

A balance needs to be found between the superior state interest of the preservation of the functioning of the institutions and the democratic exigency that these institutions should be balanced and should not be merely dominated by the ruling majority.

Having given an idea of the possible working options for having in place an anti-deadlock mechanism, it is worthwhile to recall that the Venice Commission had proposed that the election of the Chief Justice should preferably and ideally be carried out by the supreme court judges or by the current JAC that, following amendments, is today made up of the Chief Justice, two judges elected by their peers for a tenure of four years, one magistrate elected similarly and for the same tenure, the Auditor General, the Ombudsman and the President of the Chamber of Advocates.

In appointing the chief justice, it is imperative to reduce the role played by the legislative and executive powers.

Politicisation of the judiciary can never be justified, regardless of the popularity or goodness of motive, because the main objective of party politics is to gain executive and legislative power under the constitution. Seeking to manipulate and draw the judiciary into the murky puddle of politicking is both unconstitutional and immoral. This is so because the function of the judiciary is not to gain executive or legislative power but to administer justice according to law under the constitution impartially, without fear, favour or prejudice.