Five reasons why Judge Mintoff's declaration about Abela should worry citizens

Updated 6pm

Judge Lawrence (Wenzu) Mintoff's explosive email to ministers about Robert Abela has left Malta's political and legal classes reeling.  

The judge's unprecedented sworn declaration has tanked his chances of being appointed chief justice while also confirming suspicions that negotiations for the post are not being conducted in good faith.     

The Opposition has focused on the specific allegations the judge made about the prime minister in his declaration. The government has tried to steer the conversation to ongoing negotiations about their nominee. 

Beyond the spin, here are five reasons the judge's email should worry citizens. 

1. Judges and Ministers are ignoring their own rules

This is the most obvious issue of concern.

Judges and magistrates are forbidden from speaking to members of the executive (in other words, the prime minister, ministers and parliamentary secretaries) in private “on any matter connected with their duties or functions”.

The rule exists for a simple reason: to ensure our courts remain independent, fair and free of political interference. If politicians and judges are having private chats about this or that, how do citizens know they’re not discussing court decisions, too?

Judge Mintoff and Prime Minister Abela appear to have breached that rule on multiple occasions: first by meeting in private on February 11, then by chatting on WhatsApp, and finally when Mintoff emailed cabinet members with his gripes.

Those communications would have been allowed if the chief justice had granted the judge permission to speak to Abela and ministers. And perhaps Mintoff agreed to meet because he expected Abela to inform him he was to be nominated chief justice. Irrespective of that, the chief justice has now referred the matter for investigation.               

It seems Abela and Mintoff also chatted on other occasions. In his declaration, the judge complains that Abela ignored his requests to pull a controversial 2021 biography about his uncle, Dom Mintoff, from stores.

What else did the two men discuss? And how many other judges have private conversations with the prime minister?

It’s worth recalling that this is the second time in three years that Abela has been revealed to be privately chatting to members of the judiciary. Back in 2023, he had inadvertently revealed that he had spoken to a magistrate about an ongoing court case.

2. Chief Justice negotiations are a charade

Judge Mintoff’s sworn statement indicates that the weeks-long drama over the appointment of a new chief justice has all been political theatre.

Abela publicly warned of an impending “constitutional crisis” while apparently privately confiding that he intended to stall until after the next general election.

He dismissed candidates purely because the Opposition had nominated them, and believed the Opposition was also playing games by presenting decoy candidates as its nominees. 

The rules to appoint a chief justice were changed in 2020, requiring the nominee to get a two-thirds majority. Previously, the chief justice was picked directly by the prime minister. At this stage, it’s worth asking why the government wanted that two-thirds rule, if it had no intention of working with the Opposition to select a name.

Some legal analysts have suggested that Abela's plan could be to prolong the stalemate until the current chief justice calls it quits, allowing him to then nominate an acting chief justice without having to involve the Opposition.

It’s also worth noting that the Council of Europe’s Venice Commission had advised Malta to appoint chief justices in the same way as other judges - by the president after being vetted by an expert committee.

The government ignored that suggestion and insisted on keeping political control over that appointment. Once this saga is over, it will inevitably push for an anti-deadlock mechanism to be introduced, effectively rendering the two-thirds rule a charade.

3. Questions about the PM's character 

The central allegation the judge makes about Abela is terrible for the prime minister’s image: it makes him look like a greedy, money-hungry sleaze.

Abela, the judge says, tried to bully one of his court workers to recalculate court fees in a civil case, allowing him to cream more off the top in legal fees. Abela was an MP and practising lawyer at the time, representing a client in a case being heard by Judge Mintoff.

The judge alleges that Abela was so desperate to make “thousands” more from the case that he threatened to have the worker sacked if she did not comply, accused the judge of conspiring with the case defendant (President Marie-Louise Coleiro Preca) to keep court fees low, and abused his position as an MP to ask parliamentary questions about the case.

“Dr Abela cared more about money than the independence of the judiciary,” the judge wrote.

The incident dates back around eight years and Abela was not prime minister at the time. He now says he worked the case pro bono. We could find no parliamentary questions Abela asked about the case.

But for a judge to say, under oath, that the man leading the country will stop at nothing to make a quick buck is certainly damaging for Abela, given it comes in the months leading up an (as yet unannounced) general election.

4. Terrible judgment for a judge

If Robert Abela emerges smelling of muck, Judge Mintoff does not come out of this mess much better.

Sending his sworn declaration to ministers may have damaged the prime minister, but it has also backfired against him: ministers who spoke to Times of Malta said they were left horrified by the judge's "kamikaze" letter. Lawyers have said the fallout is turning a serious issue into "public farce".

The judge met with Abela in private, then weaponised that meeting when it did not go as planned, describing it, along with a 2018 incident involving Abela, in a sworn declaration to the prime minister's colleagues.

Did the judge report that 2018 incident when it happened, or did he only whip it out when he realised his chances of being chief justice were evaporating?

The judge also expressed anger at Abela's refusal to censor a biography about Dom Mintoff. 

The book may have been hurtful, even libellous, but privately petitioning a politician to have it censored, and then citing that in a sworn declaration years later arguably reflects poorly on the judge’s sense of perspective.

5. Who judges the judges? 

Judge Mintoff has been referred to the judiciary’s standards commissioner for investigation. The problem is that the commissioner is known to be one of his best friends, Judge Toni Abela.

Mintoff and Abela’s friendship dates back decades. The two quit Labour together, co-founded Alternattiva Demokratika together, and rose to the bench within years of each other.

Now, in a twist of irony, the first high-profile case to land on Abela’s desk as commissioner concerns his close friend. Will Abela recuse himself from the case? And if so, will the investigation be handled directly by the Commission for the Administration of Justice?

As for Abela, he faces a different sort of problem. He will be investigated by parliament’s standards commissioner [and former chief justice] Joseph Azzopardi – a man he told Judge Mintoff he never wanted as chief justice.