'Judiciary reduced to pawns’ in Abela-Mintoff fallout

The fallout between Judge Lawrence (Wenzu) Mintoff and Prime Minister Robert Abela is a serious, unprecedented constitutional mess that has reduced magistrates and judges to “pawns in a political strategy”, according to former members of the judiciary.

Times of Malta on Wednesday spoke to former judges and magistrates, as well as sources close to sitting members of the judiciary, who said Judge Mintoff’s letter to the cabinet and its aftermath have continued to reduce the selection of the next chief justice to a partisan game that humiliates judges and threatens the independence of the courts.

Speaking on condition of anonymity, they warned that the public spat has shattered the “serenity” of the law courts and is creating an “uncomfortable vibe” among jurists.

“I’ve never seen anything like it before. It’s extraordinary, and not in a good way,” one former member of the judiciary said. “I don’t see a clear or easy solution to this because both of them did something wrong from the get-go.”

Times of Malta revealed on Tuesday that a sitting judge sent a bombshell letter to the cabinet with a series of allegations against the prime minister.

Judge Mintoff sent the five-page letter to the cabinet, asking for Abela to be removed from talks, negotiations and decisions on the appointment of the new chief justice, claiming the prime minister is biased against him.

The fallout has led Chief Justice Mark Chetcuti to refer the matter to the Judiciary Standards Commissioner. However, this ushers in a new problem, as Mintoff’s friend – retired judge Toni Abela – is the commissioner tasked with investigating him.

Sources said this puts Judge Abela in an “uncomfortable position”, given a deep friendship going back many years. The two served in the Labour Party, resigned from it together after facing disciplinary action, founded Alternattiva Demokratika, then returned to the PL and eventually, were both appointed to the bench.

While opinions of the sources differ on the severity of Mintoff’s allegations, there is a consensus among them that both Abela and Mintoff failed to protect the integrity of their respective offices.

The sources agreed that the private meeting between Abela and Mintoff should never have taken place. While some argued that Mintoff should have sought permission from Chief Justice Mark Chetcuti before attending, others placed the blame on Abela for initiating a direct line of communication that bypassed constitutional safeguards.

“In a small country where everyone is suspicious of everyone else, these optics are fatal,” one former member of the judiciary noted.

“The moment they sat down together, the barrier of independence was blurred.”

The most damaging revelation in the eyes of a couple of sources was Mintoff’s claim that Abela rejected certain candidates purely to avoid handing a political “win” to the opposition.

“That is the most serious claim,” one of them said.

“If the prime minister is making decisions based on whether a nomination gives credibility to Alex Borg, he has reduced the highest post in the judiciary to a game of partisan politics. It implies that every candidate – whether suggested by the government or the opposition – is merely a pawn in a political strategy.”

He described Judge Mintoff as a good compromise candidate who “ticked the right boxes” but lamented that he had been “lost” to the toxic political polarity of the country.

“He could have been a good candidate, but we lost him to the sick partisan politics of this country.”

All sources agreed Mintoff’s letter was a strategic mistake likely born out of personal hurt, but most of them defended his character.

“Wenzu reached his limit. He is likely feeling left out, and while he could have passed the message differently, this is his nature – straightforward and honest,” one source said.

A ‘charade’

The deadlock over the appointment of a successor to Chief Justice Chetcuti, which requires a two-thirds parliamentary majority, was described by one source as a “charade” that is poisoning the atmosphere within the courts.

“It’s creating a bad vibe even between magistrates,” they said.

They also had scathing criticism for Abela’s decision to float names in the public domain without first securing cross-party agreement.

“Once you throw a name out there knowing you don’t have the opposition’s support, there’s no turning back. You are simply humiliating the candidates by showing the whole country that they don’t enjoy the trust of the other party.

“This should have been settled behind closed doors between Abela and Borg and the public should have only heard about the chosen candidate at the very end.”

Abela the lawyer

Sources were split on the severity of Abela’s alleged actions back when he was working the Paqpaqli case as a lawyer.

One source condemned the alleged behaviour as “not in the spirit of good advocacy”, saying: “You don’t put pressure on a judge’s employees to change rules for your financial gain. It’s even worse if that pressure led to threats.”

However, others suggested this sort of pressure is not rare among lawyers frustrated by outdated fee structures, though they admitted the context of Abela’s current power makes the allegation far heavier.

The sources were confident that this fallout has put Toni Abela between a rock and a hard place, having to investigate Mintoff when the two are known to be close friends.

When contacted, Abela said he could not comment on the matter.

Constitutional lawyer Tonio Borg, however, said he does not see a legal reason why Abela must be recused from the case if the standards of the judiciary are applied to the standards commissioner.

“In general, it is in cases where a member of the judiciary presides over a family member or when there is a financial or direct interest that judges must recuse themselves from proceedings,” the former justice minister said.

What’s more, Borg pointed out that Abela’s role is only to issue a report and give a recommendation. It is the Commission for the Administration of Justice that has the final say on whether a judge is found to be in breach of the judiciary’s ethics and on which penalty they will impose.

“However, Abela can always abstain if he feels that he cannot administer blind justice in a particular case”.

But that could create another problem.

“As far as I know there is no mechanism for when a standards commissioner abstains – there’s no one to take his place,” he said.

Meanwhile, Robert Abela on Wednesday asked the standards commissioner to lift the statute of limitations stopping him from investigating allegations of misconduct that took place before he was elected prime minister. 

Rule of law group Repubblika and the Momentum political party separately asked the Commissioner for Standards in Public Life to investigate the sworn allegations about the prime minister.

Reacting, Abela told his Facebook followers on Wednesday afternoon he had asked the Commissioner for Standards in Public Life Joseph Azzopardi to lift the statute of limitations on the allegations flagged by Repubblika and Momentum.

“I welcome full scrutiny because I have nothing to hide,” he said. 

And earlier on Wednesday, Justice Minister Jonathan Attard said that he is still awaiting feedback from the opposition on the latest government nominee to become chief justice. It is understood that the government nominated Madam Justice Miriam Hayman at a meeting last week.