Malta, in general, and the judiciary in particular, needs judicial leadership.
The conduct of the Prime Minister and the Leader of the Opposition, in and outside parliament, does not make things any easier.
There has been a relentless campaign on both the PN and the Labour Party to politicise, and therefore delegitimise, the top judicial post of chief justice as head of an institution. Integral to this cause has been an effort to paint the Court as just another partisan branch of government, akin to the executive and legislative branches.
Such an attitude is not only wrong-headed but dangerous. Dangerous because, to the extent it succeeds, it undermines the rule of law upon which our system of constitutional government rests.
Our constitution dictates that the appointment of the chief justice is left confidentially in the hands, initially, of the prime minister, only to be consented to by the leader of the opposition, who would then go to parliament to obtain the required two-thirds majority. But when the press characterises the choice and appointment as being in "PN hands" or having a "Labour supermajority", it fuels the notion that the chief justice, once he or she dons their robes, is expected to act on a party basis.
This partisan gloss makes it more difficult to maintain the public's confidence in the work of the judiciary. It's one thing to characterise the chosen chief justice as "nationalist" or "labourite", or whatever other jurisprudential or philosophical label may be thought appropriate. It's quite another to leap from the philosophical to the partisan.
All those who care about the rule of law, whether on the PN or PL's side, should make a conscious effort to rebuff attempts to label the nomination and choice of a chief justice on a partisan basis. This characterisation delegitimises the judiciary's work in the mind of the public.
And the press, toeing the line of both sides in the political camp, should know better and do better. Rather than boosting the cause of politicising the chief justice's nomination and appointment, a responsible press would help educate the public regarding the top judicial post's unique role in our constitutional system as an institution whose decisions are grounded in law, not politics.
All publicly mentioned candidates for this highest judicial office, all with distinguished records, have now become victims of this political, disastrous mess generated by both mainstream parties. The upshot is that this issue has now tainted and polluted the entire process. It has ensured that whoever is appointed as chief justice will assume office in a climate of great controversy.
The pity of this entire saga is that, as a consequence of Prime Minister Robert Abela's ill-advised idea of conducting a beauty or popularity debate for the position of chief justice, the judiciary will continue to languish for months without a longed-for successor chief justice. The judiciary as an institution has long been suffering, if opinion polls are any guide, from a declining level of legitimacy and trust.
There has been some noise about making the process of appointing the chief justice both more transparent and more political. However, this is probably one case where a degree of opacity is needed to retain the apolitical nature of the appointment and to ensure the continuing impartiality of our judiciary. We certainly want to avoid the kind of partisan bickering we saw recently in choosing a chief justice satisfactory to both political sides.
While the average Maltese might not be able to name the current chief justice, the role is incredibly important, and the impact of a new appointment should not be underestimated.
The role of the courts in limiting the power of government and parliament is well established. How effective the courts are, and the way in which they discharge this function, can be heavily influenced by the chief justice.
The formal role of the chief justice is the second most important part of the job. The chief justice is the head of the judiciary, the link between the courts, the executive and parliament (for example, when legislation or funding in respect of the courts is being considered), and the voice of the judiciary in public affairs.
However, the real power lies in the influence that this role has over the judiciary as a whole.
The position of the head of the judiciary also gives considerable influence to the role, and his fellow judges, magistrates, lawyers, politicians and media pay careful attention to the content of the speeches that the chief justice makes every year at the beginning of the forensic year. Such speeches often touch on important matters such as the rule of law, the court services agency and judicial independence, all matters of prime importance.
Historically, chief justices have been appointed relatively infrequently.
But the longevity of the appointment is a critical factor. Two or three years is probably insufficient to really make a mark; however, it is equally arguable that service of 15 or 20 years is a little too long. So any appointment will likely be within a predictable age window.
Ultimately, the chief justice appointment is one place where the division between the judiciary and the executive becomes a little blurred. There has been a suggestion that an appointment of this importance should be subject to greater parliamentary scrutiny or, better still, outside the remit of the executive and legislature.
Dr Mark Said is a lawyer