Joseph Muscat makes case in court to replace magistrate in Vitals inquiry

Disgraced former prime minister Joseph Muscat took the witness stand on Thursday in the case he filed to request the replacement of  the presiding magistrate in the magisterial inquiry into the Vitals hospitals deal.

He took issue with magistrate Gabriella Vella ’s classification of online comments published by her father and brother as free expression, saying that this meant that “she took their side against me".

"From that moment on, the case was definitely prejudiced and my rights breached," said Muscat.

"In her decree the inquiring magistrate gave reasons for denying my request, saying it was freedom of expression. I want to testify to safeguard my rights and the magistrate said that she was taking measures accordingly," Muscat told Madam Justice Doreen Clarke, presiding over the First Hall of the Civil Court in its constitutional jurisdiction.

Muscat is requesting the judge to issue an interim measure, arguing that the magistrate implied that he was being “accused of something."

"I’m no lawyer but from a logical aspect, the minute the magistrate made a decision taking her relatives’ side, the need for her recusal arose," he said. "So we are seeking an interim measure to ensure that my rights will not be breached any further."

Muscat is asking the court to order the magistrate’s recusal from leading the inquiry into the concession granted to Vitals Global Healthcare to run three state hospitals. The case was filed after magistrate Vella rejected Muscat’s request to recuse herself.

The court is being asked to declare that the provision of the law used to base the inquiry request on, breached Muscat’s right to a fair hearing by creating a distinction between those individuals identified as suspects in the initial stages of the inquiry and others who became suspects later, during the course of the inquiry.

He is also seeking a decision ruling that the section of the law regulating the recusal of a magistrate breached his rights, because recusal requests are decided by the same member of the judiciary whose recusal is sought and not determined by an independent and impartial tribunal.

Rule of law NGO Repubblika subsequently filed an application asking to be admitted as a party in the case. Repubblika’s president Robert Aquilina said the organisation had a “direct, concrete and substantial interest” in the outcome of the case and highlighted the fact that Repubblika had made the first ever call for an inquiry into the hospitals deal, back in 2019.

Aquilina added that Repubblika had a direct interest in intervening in the case, in order to rebut Muscat’s claim that it had advance knowledge of a police search at Muscat’s Burmarrad home, as part of the inquiry.

Social media comments by Magistrate's relatives "impinged upon the subject of this case," prejudices Muscat, lawyers claim

Cross-examined by lawyer James D’Agostino from the Office of the State Advocate, Muscat was asked to explain what he understood by a magisterial inquiry.

“In this case it means a third party requested an investigation into the privatisation deal, three ministers were listed as suspects, they challenged the decision, and eventually an investigation started…” Muscat replied.

When it was pointed out that an inquiring magistrate does not determine guilt or innocence, Muscat replied that the inquiry at hand was “not just any other inquiry,” because of the political repercussions.

“I understand that in this case the magistrate does not determine guilt but the minute the inquiring magistrate recommends or orders that the individuals are prosecuted, that is a very important decision… and in my view, even at that stage you can be prejudiced,” Muscat said.

D’Agostino asked Muscat whether magistrate Vella’s relatives were involved in the case - precisely because they are not. But Muscat insisted that the magistrate’s family members had expressed their opinion on the matter, saying that this left the magistrate with no option but to uphold his request for her recusal.

Lawyer Charlon Gouder, for Muscat, pointed to the social media comments made by the Magistrate’s relatives, who had shared social media posts from Repubblika, calling for protests and demanding politicians be sent to jail. One of the posts had mentioned the head of government at the time when the hospitals decision was taken. “And who was the head of government at the time? Muscat,” reads the post in question.

"The magistrate should have recused herself," Gouder argued. "What Massimo and Aldo Vella said impinged upon the subject of this case and is very similar to what is being tackled in this case. What they said presents prejudice to Muscat. It impacts the Magistrate’s objective impartiality and consequently Muscat’s rights."

No point in issuing interim measure, says State Advocate. "What's done is done."

D’Agostino argued against the granting of the requested interim measure, pointing out that while the purpose of an interim measure was to prevent an expected future event from happening, in this case Muscat had already claimed to have suffered the breach of his rights.. “So what’s the use of an interim measure if that is the case? What’s done is done."

The State Advocate's lawyer went on to suggest a number of reasons for refusing Muscat's request. The inquiry might not conclude that charges should be pressed, he said, and if a prosecution were to be ordered, this would be a separate procedure before a different magistrate, affording Muscat full legal rights, including the right to appeal. Any damage that Muscat could potentially suffer was not irreparable, added the lawyer.

On the other hand, were the interim measure to be granted, there is the possibility of the evidence it is meant to preserve being lost or destroyed, he said.

Additionally, should the inquiry be suspended, this would have a negative effect on the rights of the other individuals being investigated, he argued.

Cheekily borrowing a phrase made famous by Muscat’s successor, the lawyer asked Muscat to “let the institutions work.” 

"There's no need for an interim measure here. We can continue with the case. If he’s right, he will win [the case]."

Gouder responded to the State Advocate lawyer’s submissions, clarifying that Muscat was not saying that the inquiry should be stopped, but that it should continue under a different magistrate “who can guarantee impartiality.”

D’ Agostino replied by asking the lawyer how he could be sure that Muscat was even a suspect in the inquiry, which is not a public document.  “Am I to rely on a Facebook post by Robert Aquilina to determine this?,” he asked.

The judge rebuffed Gouder's request for a rejoinder, adjourning the sitting to Wednesday 5 July at 8:30am.