Abela presents motion for Scerri Herrera to become chief justice, PN says 'no'

Updated 7.41pm

The Opposition has shot down attempts by the government to move a motion in parliament on Wednesday to nominate Consuelo Scerri Herrera as chief justice.

The motion was announced by the Labour Party in a statement on Tuesday afternoon, shortly after Prime Minister Robert Abela said he would go ahead with the nomination unless the Opposition leader voiced objections to Scerri Herrera.

When Naomi Cachia, the government whip, rose in parliament seeking leave of House to move the motion on Wednesday, her opposite number in the Opposition, Robert Cutajar, objected and said normal procedure - taking several days - had to be followed.

He asked for a ruling.

The Speaker, Anglu Farrugia, ruled this was a substantive motion and since there was no leave of House it could not be debated on Wednesday without the required (three-day) notice laid down in Standing Orders.  

PN proposes alternative

Meanwhile, Opposition leader Alex Borg told Times of Malta that while objecting to Scerri Herrera's nomination, he had proposed another person to serve as chief justice.

The appointment of the chief justice needs a two-thirds parliamentary majority to be approved.

The Nationalist Party also said in a statement that Borg had written to Abela, pointing out that at their last private meeting, he had already informed him there would be no agreement on Scerri Herrera.

During the same meeting, he had also proposed another individual. Abela told him that he would take this proposal to the Labour Parliamentary Group for discussion and would then inform him of the outcome.

"To date, this has not happened. Instead, the prime minister publicly revealed the name of the sitting judge of his choice for this position, despite knowing that there was no agreement on this nomination," the PN said.

Borg told Abela that it was difficult to understand why he had persisted in his nomination, to the extent of tabling a motion in parliament, when he already knew it would not secure the necessary consensus.

"This is certainly not in the best interests of justice, particularly when a sitting member of the judiciary is being subjected to such a situation," he said.

Borg reiterated his call for a meeting to discuss the matter, during which he said he could propose other names, if necessary.  

The current Chief Justice, Mark Chetcuti, is due to retire on Wednesday, on turning 68. However, the Constitution requires him to stay on until a successor is appointed.  

No agreement

Earlier on Tuesday, Abela told reporters that Borg has still not told him whether he agreed with the choice of Scerri Herrera.  

“I still do not have a clear answer about the government’s nominee, Justice Consuelo Scerri Herrera, being made president of our courts (chief justice). The leader of the opposition cannot continue sitting on the fence. He needs to say yes or no,” Abela said.

“If it is a yes, we can proceed. If not, we can discuss other alternatives. But until today, he still cannot do the most obvious thing to do in negotiations, which is to say yes or no for the government nominee.”

Abela said he first proposed the candidate three weeks ago.

“Until now, I have not heard one good reason why Judge Scerri Herrera does not have the competence and credentials for the role.”

He accused Borg of being unable to give a clear answer because of factions in the Nationalist Party who want different things. That is why the government’s nominee was not discussed in the parliamentary group, Abela said.

Exchange of letters

The prime minister was speaking following an exchange of published letters between the two leaders.

In the letter, the opposition leader said Abela broke his “gentleman’s agreement” of maintaining confidentiality about their talks, but also said he was willing to continue discussing the matter in a meeting as soon as possible.

Replying, Abela denied there being any sort of “gentleman’s agreement” with the opposition leader regarding secrecy over the nomination for the post of chief justice.

Abela said that in principle, he has no issue with meeting again to discuss the matter, but first, he needs a clear answer on the government’s person of choice.

“If things stay the same, as a government, we will be moving a motion for the nomination of Justice Scerri Herrera to parliament. Understand what I said clearly: we will be nominating Justice Scerri Herrera for a parliamentary vote.”

He subsequently followed up on that pledge by tabling a motion nominating the judge to lead the judiciary. 

This is the first time that the nomination requires a two-thirds majority, following a reform intended to reduce ties between the chief justice and executive. 

The current chief justice, Mark Chetcuti, was appointed directly by the government. Abela said he and the Opposition leader at the time, Adrian Delia, had settled on Chetcuti “within minutes”.

“That happened because we had the willingness to decide, and there were external factors conditioning his (Delia’s) decision.”

The chief justice is the head of Malta’s judiciary. Besides hearing some cases, the chief justice also decides which members of the judiciary hear which types of cases.

Scerri Herrera was appointed magistrate in 1998 and a judge in 2018. Prior to that she was a partner in the legal firm Herrera and Herrera Advocates with her brother, José, a former minister and possible Labour Party candidate in the next general election.

Lawyers speaking to Times of Malta last week described her as “extremely knowledgeable" and "extremely organised”. But some also pointed to her “baggage”, including her brother, José, being an ex-minister and possible political candidate, and her legal spats with assassinated journalist Daphne Caruana Galizia.

Scerri Herrera was also censured by the Commission for the Administration of Justice for breaching the judiciary’s code of ethics, over her conduct in her private life around a decade ago.

Risk of a constitutional crisis

In a statement after the Speaker's ruling against the motion being moved on Wednesday, the Labour Party said the Leader of the Opposition was ready to take the country into a constitutional crisis. 

The Nationalist Opposition has so far not given any reason why the Government's nominee for the post of Chief Justice should not be appointed, the PL said. 

"With a partisan purpose, the Leader of the Opposition continued to drag his feet until the eve of the retirement of the current Chief Justice. He has been aware since 12 January of the Government’s nomination and has not put forward any valid reason for the nominee not to hold the post of Chief Justice."

"Whoever remains undecided because he’s led rather than is leading his party, cannot make important decisions of interest to the people," the PL said.

Appointment to judiciary's top post has become political - Repubblika

In a statement, rule of law NGO Repubblika regretted that the appointment of the chief justice had become a political football, harming the independence and authority of the judiciary.

It recalled that the European Commission had criticised the manner of appointment in Malta, with judges having no say in the nomination of the chief justice.

The fact that no constitutional amendments had been made to involve the judges in the appointment did not mean that they should be ignored, the NGO said.

 

A short while ago, Leader of the Opposition Alex Borg once again wrote to Prime Minister Robert Abela regarding the appointment of the Chief Justice, following the Prime Minister’s decision to table a Motion in Parliament proposing Judge Consuelo Scerri Herrera as the new Chief Justice of the Courts of Justice of Malta.

In his letter, the Leader of the Partit Nazzjonalista reminded the Prime Minister that during their last private meeting, he had already informed him that there would be no agreement on the name proposed by the Prime Minister.

He also recalled that during the same meeting, he had put forward the name of another individual, and that on that occasion Robert Abela had informed him that he would take this proposal back to the Labour Parliamentary Group for discussion and would then inform him of the outcome.

To date, this has not happened. Instead, the Prime Minister publicly revealed the name of the sitting judge of his choice for this position, despite knowing that there was no agreement on this nomination.

In light of this, the Leader of the Opposition continues in his letter, it is difficult to understand why the Prime Minister insists on persisting to the extent of tabling a Motion in Parliament on a person whom he already knew would not secure the necessary consensus. This is certainly not in the best interests of justice, particularly when a sitting member of the judiciary is being subjected to such a situation.

While reminding the Prime Minister that he is still awaiting a response regarding the name he had proposed, the Leader of the Opposition also reiterated that he is still awaiting a reply to his request for a date and time to continue discussions on this matter in a mature, discreet, and institutionally appropriate manner.

Alex Borg concluded by stating that during this meeting – which he is still awaiting – he would also be in a position, if necessary, to put forward for discussion with the Prime Minister further names which, in his view, could also be valid candidates to be considered for this role.