Normally I do not write about pantomimes as I am not a theatrical critic. Nevertheless, I thought that I should not miss discussing the latest one due to its constitutional and legal implications. We have seen lately that the 2020 amendments made to the Constitution of Malta to appoint the Chief Justice by at least a two-thirds majority vote of the House of the Representatives has failed miserably due to the intransigence of the Prime Minister and the Leader of the Opposition. Instead, both sides of the House are now advocating an anti-deadlock mechanism. This mechanism, when agreed to and whatever its provision, celebrates the defeat of the two parliamentary political parties strained effort to arrive at a conjoint decision in the public interest. Political immaturity indicates that these two leaders lack statesmanship as they cannot rise above partisan politics. Hence, they both agree on recourse to an anti-deadlock mechanism though the devil lies in the detail and surely not even on this mechanism it is guaranteed that will be agreement thereupon.

One must distinguish between the right to remain silent and the duty to remain silent. In the case of a suspected person who is arrested by the Police - and in all subsequent procedures until the criminal proceedings are conclusively terminated - a detained, arrested, charged or accused person enjoy what is referred to as the right to silence, the right against self-incrimination. Of course, it is possible for such person to elect to renounce such right and spill the beans. This right also extends to magisterial inquiries and before the House of Representatives and its Select and Standing Committees.

The duty to remain silent is a different matter altogether. In the case of the judiciary, they exercise this duty by not making any form of public pronouncements to defend their integrity, correctness in the exercise of their judicial functions, uprightness, honesty, etc. If they are criticised in public, even if that criticism is defamatory, false, malicious, and/or incorrect, they are expected to suffer humiliation in silence even if their ego might dictate otherwise.

In the past, such matters used to be addressed through contempt of court proceedings but this did raise constitutional difficulties in so far as the aggrieved member of the judiciary ended up deciding the case in question, thereby acting as prosecutor, witness, victim, judge, and jury. At times it is the registrar of courts who sets the record straight by answering in the press the calumnious accusations levelled at the judiciary. There is still the possibility of suing for defamation.

The problem arises when the names of proposed members of the judiciary to the office of chief justice are spread publicly like wildfire by politicians, an irresponsible act that breaches confidentiality, a public interest requirement when political negotiations are held to fill top offices of state. The consequent result - intended or unintended - is that of tarnishing the reputation of the members of the judiciary, in full knowledge that the judiciary are like sitting ducks, an easy target for public humiliation and attack, who cannot defend themselves in public. They are the politicians' sacrificial lamb waiting to have their head chopped off at the altar of political expediency.

Recently we had the unethical disclosure during confidential negotiations of the name of the first judge whom government proposed for the office of Chief Justice that was objected to by the Opposition. The Prime Minister - wrongly and in breach of confidentiality - chose to render that name public. As though this was not enough, to add insult to injury, and to unscrupulously damage the honour of their own nominee, government moved a motion in the House of Representatives to have that judge appointed chief justice knowing well in advance that this motion would be defeated. Prudence, respect for judicial independence, the rule of law, and good governance, and to pay homage to the judge nominee concerned, dictated that neither the name of the judge in question nor the parliamentary motion should ever have been respectively disclosed and tabled in the House. But what is proper conduct and what actually happens are two different matters altogether.

The Leader of the Opposition, whilst denouncing the breach of confidentiality by the Prime Minister in disclosing government's proposed nominee, in turn, was infected by government's transparency virus and all of a sudden, lo and behold, the name of four Opposition nominees for the office of chief justice were publicised or leaked to the press.

As all this harm occasioned to the independence of the judiciary was not enough, the Prime Minister is reported to have publicly stated that he disagreed with the Opposition's preferred candidate for judicial office, whose name was ceremoniously published in the media. Subsequently, the name of the second government candidate for judicial office was also publicised whilst the opposition had leaked the name of their favourite nominee out of the previous remaining three of their short list. It is not clear what the political parties are gaining by publicising the names of their nominees to have them publicly rebuked by the opposing political party. Have the political parties declared a war of confrontation against the judiciary, bullying them into submission, and sending the message to the judiciary that the political parties have no qualms in publicly humiliating and deriding the judiciary, just for the fun of it? One judge nominated by the Opposition has vehemently protested at the way he has been treated by the Prime Minister, a matter that I have addressed in two previous contributions of mine in this paper.

The method employed by the Prime Minister and the Leader of the Opposition when dealing with the appointment of a chief justice is nothing more nothing less than a charade. It confirms black on white how wrong the two parliamentary political parties were in 2020 - and still continue to be - when, contrary to the advice of the Venice Commission, they divested the Judicial Appointment Committee from its natural function of appointing a chief justice. Now, the political parties are both proposing an anti-deadlock mechanism to continue to meddle in the affairs of the judiciary rather than allow the judiciary an element of self-regulation through the Judicial Appointments Committee.

Why do we have a Judicial Appointments Committee that does not appoint the chief justice? Or a Broadcasting Authority that does not licence Public Broadcasting Services, or an Ombudsman who does not appoint his own sectoral ombudsmen except by default when the political class fails to arrive at a decision, with all the consequent loss of time incurred in filling top independent offices of state? The answer is simple: power grab and state capture - the political class has abducted the independent institutions of the state not in the public interest, but to assuage their political partisan aspirations.

We have recently witnessed a game of capriciously eliminating the candidate proposed by the other side without any cogent reasons provided therefor - a game of shooting down the adversary's target nominee. One political party shoots at the other political party's target candidate and vice-versa. This is nothing but a game of tit for tat. The problem with this dangerous and institutionally damaging game is that it is happening in public and thereby damaging the independence of the judiciary and the international reputation of the state of Malta, apart from innocent third parties - the judges involved who are caught in the line of fire between the two political parties. If the Prime Minister and the Leader of the Opposition want to publicly make fools out of themselves, that is one thing, even though this still harms the national interest. But to drag into their game innocent third parties who are defenceless and vulnerable because of their duty to silence is totally another thing.

The message that the two parliamentary parties are conveying to the person who will eventually be appointed chief justice is that they own him or her. S/he should therefore feel a huge sense of gratitude to them for being so appointed, a gratitude that must be paid back in the court decision making process. This form of influence that is exerted by the power holder over the new chief justice-to-be removes the constitutional protection of independence from that office. An anti-deadlock mechanism aggravates it because it will be only one political party that will choose the next chief justice if the government has it its way unless it divests itself of this power in favour of a third party not being the Judicial Appointments Committee. In a parliamentary democracy based on the rule of law such game should be at least prohibited, if not criminalised. Furthermore, when the new chief justice is subsequently called upon to decide a court case in which the objecting political party to his or her chief justice candidature was involved, will not that put undue pressure on the chief justice to abstain from hearing the case thereby prejudicing the proper administration of justice?

In the press it has been reported that for the government the anti-deadlock mechanism will see the President take the ultimate decision when government and opposition register a stalemate. Once again, this is totally wrong because the President, contrary to the Judicial Appointments Committee, does not have the means to carry out the necessary selection that the said Committee carries out for prospective judges and magistrates. Will the President issue a call for expression of interest? Will she interview potential candidates? Will she study their performance in judicial office? And what if the applicants are not members of the judiciary? Will she carry out all the tasks the Judicial Appointments Committee (JAC) does today in the case of judges and magistrates? Will she delegate this task to the JAC and then will select one candidate from a short list of three? And, if so, on what criteria will the selection be made?

Once the candidates for the office of chief justice have been eliminated in a publicly humiliating fashion, these members of the judiciary - because of their vote of silence - cannot set the record straight. A lot has already been said about them in all media, including the uncontrolled social media, and they have had no opportunity to defend themselves. This is therefore totally unfair and unjust. Whilst judges are called to dispense justice and redress injustice, when it comes to their own fate, politicians dispense to them injustice, unfairness, humiliation, and public ridicule, to be joined by the social media that take the cue from leading politicians.

Take the case of Judge Wenzu Mintoff who attempted to set the record straight - his confidential email to the Cabinet Secretary was leaked in breach of the rule of law and secrecy legislation but, to date, we have not yet been informed that: (a) the Commissioner of Police is seriously investigating this very serious crime of breach of official secrecy that prejudices the security of the state and the public interest; (b) a board of inquiry has been appointed to establish how can such occurrence not repeat itself in the future once Cabinet documents are not secure; and (c) a criminal inquiry is established to investigate: (i) breach of confidentiality by the Prime Minister and the Leader of the Opposition and others who were involved in disclosing state secrets in relation to the names of judges being considered for appointment to the office of chief justice; (ii) the leak of a secret Cabinet document (the Judge Mintoff email); (iii) the serious allegations made against the Prime Minister in that email); and (iv) the failure of the Commissioner of Police, should this be the case, of not investigating these criminal offences and others that can be discovered from the criminal investigation itself.

First, and most important of all, why has the Prime Minister departed from the previous constitutional practice adopted between 1964 up to a few weeks ago, that prospective political appointees to the office of chief justice are not spoken to except after Cabinet has decided on their appointment and, in the meantime, all Cabinet deliberations are kept confidential? This was a good procedure because it put our mind at rest that government will not dangle the carrot to a prospective appointee if the latter were to decide cases in favour of government, or that a prospective candidate would not make unreasonable or illicit conditions or demands should s/he be so appointed.

Second, once the Prime Minister changed tact and decided to approach potential candidates prior to a Cabinet decision is taken, the publicly proposed candidates were placed in an embarrassing situation because they had to converse with him very much in breach of the Code of Ethics even if the code was now no longer compliant with the constitutional provision as was being interpreted and applied both by government and the opposition.

From the facts as they have emerged in the press, it is not clear whether these candidates have been offered the office, who accepted, who declined, and what conditions, if any, were discussed or made by either party. When politicians approached prospective judge-nominees, were they unaccompanied or not, and were minutes taken of the conversation? For instance, I would have expected the Prime Minister to have involved the justice minister and the Leader of the Opposition to have been accompanied by the shadow justice minister during such meetings with judges (even though I disagree with the entire procedure of approaching judges before they are selected for the post). Were minutes kept of such meetings that would subsequently be communicated to all parties concerned with the possibility that any party would be able to object, correct, or set the record straight?

Third, how many members of the judiciary need to be burnt publicly at the altar of political expediency before a candidate is finally chosen? I am extremely mortified at how this matter has been dealt with and express my full solidarity with the judges who fell victims of this unjust, unfair and malicious treatment that was not really needed to unnecessarily distract the nominees from performing serenely their judicial duties, that brought about undue pain and distress, and contributed to add more stress than that already suffered, with possibly some judges some of whom on the point of burnout.

Fourth, why is the appointment process being limited only to serving judges? Why are not other potential candidates being considered? The number of judges is very limited. Some are reaching retirement age; others are still very junior and least experienced for the job; others might not be interested at all in the job. What about serving magistrates? These should also be considered once the judiciary play the song that there should be no difference between judges and magistrates. So why should there be a difference now? Why have lawyers serving in other public offices or in private practice not been considered?

The way how the appointment of chief justice process has been handled by the Prime Minister and the Leader of the Opposition leaves considerably much to be desired. Unfortunately, I am not well versed in literary skills for this episode could well have been an appropriate subject for a tragicomedy, not to say a pantomime. For me, it only proves how deficient the 2020 constitutional amendments were to empower inept politicians who are harming our parliamentary democracy to decide on such appointment when, strictly speaking, the Judicial Appointment Committee is - and should be - the appropriate competent authority best suited to decide such matters. The solution that the politicians are advocating of a deadlock mechanism is worse - returning to the status quo ante before the 2020 amendments: to have the chief justice chosen by the government of the day or some other concoction that does not respect the independence of the judiciary, the separation of powers, the ruler of law, and the integrity of the selection process are a no-no, a line that should not be crossed.

The Chief Justice appointment saga does not end here. It is still ongoing and there will be a follow up thereto in the coming days when there will possibly be another farce - the appointment of an Auditor General and a Deputy Auditor General; and possibly the concoction of another anti-deadlock mechanism mired in a babyish, immature, and politically insensitive competition of who amongst the Prime Minister and the Leader of the Opposition stomps one's feet the most forcefully on the ground whilst yelling the most loudly possible in a fit of rage.

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