PN recusal request: Lawyers make their submissions

Lawyers representing the seven appellants insist that there is no case for the recusal of Judge Antonio Mizzi whilst the PN lawyer – Jason Azzopardi – said that ‘the appearance of bias, not the actual bias’, was the problem

matthew_agius
Matthew Agius
18 September 2017, 11:55am
Simon Busuttil, flanked by outgoing secretary-general Rosette Thake, make their way to court this morning (Photo: James Bianchi/MediaToday)
Simon Busuttil, flanked by outgoing secretary-general Rosette Thake, make their way to court this morning (Photo: James Bianchi/MediaToday)
PN leader Adrian Delia was present in court today, sitting beside former leader Simon Busuttil, as lawyers made a number of passionate submissions on the PN’s request for the recusal of judge Antonio Mizzi.

The PN do not want Mizzi to preside over the appeal against magistrate Ian Farrugia's decision to launch an inquiry into money laundering allegations involving OPM chief of staff Keith Schembri and Tourism Minister Konrad Mizzi – amongst others – due to the judge's family ties to the Labour party.

Lawyers Edward Gatt and Mark Vassallo, Pawlu Lia, Stephen Tonna Lowell, Ian Refalo, James D' Agostino and Aaron Mifsud Bonnici are appearing for Joseph Muscat, Konrad Mizzi, Keith Schembri, Brian Tonna, Karl Cini and Adrian Hillman in the seven appeals that have been filed .The appellants are insisting that the prerequisites for a magisterial inquiry (known as the in genere) do not exist.

This morning, Judge Mizzi heard submissions on a request by the PN for the judge’s recusal. Busuttil had argued that Judge Mizzi is unable to fulfill his duties impartially because his wife – Marlene Mizzi – is a Labour MEP.

In his submissions today, lawyer Edward Gatt said the case was breaking new ground and the courts had to rely on academia. “Unfortunately, these courts have been abused... and frankly they are asking you to break the law.”

Lawyer Edward Gatt criticised the “obtuse nature” of the language used by the other party, which, he said, bordered on contempt of court.

“We can have no more pussy-footing and velvet gloving. We need to make an academic assessment of what we have before us. Before the elections, there was a request to the Commissioner of Police to investigate the allegations relating to Egrant.

The request was made with the intention of having the result before the election,” he argued, adding that the outcome hadn’t been affected.

“This isn’t a question on whether we are claiming innocent because of a technicality… when you are accused morning to night of money laundering it bothers you. That someone smears you because of your political beliefs.”

Gatt pointed out the issue of “forum shopping”, arguing that instead of going to the Police Commissioner, Busuttil chose to go before a magistrate.

Interjecting, Jason Azzopardi protested that this had nothing to do with the issue at hand.

But Gatt went on, lambasting the practice of simply giving magistrate boxes upon boxes of documents and expecting them to “act like Sherlock Holmes” and find something in them. “Is this the role of the magistrate?”

“They are trying to embarrass you by agreeing with the argument about your family when the law doesn’t allow you to recuse yourself,” Gatt told the Judge.

He went on attacking the “poverty of argument”, reminding how Judge Mizzi was first described as a man of integrity, but then attacking his integrity.

“The court should rise above political intrigue. If there is someone who has a political interest, it is me!”

Taking the floor, Jason Azzopardi made his submissions as he cited European law and court decisions.

“Nobody here doubts your integrity,” he told the judge, who has already served 30 years as a member of the judiciary. “You are married to someone who happens to have chosen to involve herself in politics. The fact that your wife is involved in politics, and has made certain statements, cannot be ignored.”

Stephen Tonna Lowell argued that, for the court to uphold the request for recusal, it must break the law.

“My clients Brian Tonna and Carl Cini are not politicians. So everything said about the other parties in this respect does not apply.” They never made a declaration saying they would not be applying for a revision of the decision, he added.

Adrian Hillman’s lawyer, Prof. Ian Refalo said it was baseless to ask for recusal.

“My client is Adrian Hillman. His application is his own and not for other persons. It must be shown that the request for recusal applies to Adrian Hillman, who is not involved in politics and has no interest in it.

“There is no nexus between her and the case,” he said. “It is irrelevant that my wife expressed an opinion and the law makes it clear...it is the judge who must have expressed an opinion and not others... It’s a non sequitur.”

Jason Azzopardi replied to the arguments.

“We are taught that justice must not only be done but also be seen to be done,” he reiterated, arguing that it was “the appearance of bias, not the actual bias” that was the problem.

At one point, Azzopardi had to be reined in by the judge for overstepping the mark, leading to a loud exchange of views between the lawyers, after which Azzopardi continued.

Cases involving hunting are never assigned to judge Edwina Grima because she is married to a person involved in Birdlife, Azzopardi pointed out.

European jurisprudence had emphasised the importance of a detached approach by judges. If there was an indication of personal involvement on their part, this would breach Article 6 of the European Convention.

“Dr. Bonello’s argument is cute,” said the lawyer. “He referred to the case of Samuel Azzopardi, which is currently subject to appeal. He didn’t mention that in that case he had requested the recusal of judge Jacqueline padovani Grima because a member of the PN parliamentary Group, lawyer Edward Debono, worked in a law firm of 70 lawyers one of whom is the judge’s brother. “

“Let us entertain the hypothesis that the controversy we have before us today was to be decided by Mrs. Marlene Mizzi. Could she hear it? Certainly not. And if she is not eligible to hear it, neither is her husband, because in marriage you are one person at law.”

In his counter-reply, Gatt warned against getting “lost in the smoke.” The law which only speaks of magistrates must also apply to judges. Tonna Lowell added that one section of the law in question had been amended in 2006 but not the rest. It stood to reason that the amendment also applied to the higher courts.

“If the court upholds Azzopardi’s request, with the greatest of respect, it will be breaking the law,” he submitted.

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Court reporter Matthew Agius is a Legal Procurator and Commissioner for Oaths. Prior to re...