Repubblika files constitutional case over magistrate with family ties to Muscat’s lawyer

Repubblika has filed constitutional proceedings this morning, over Magistrate Nadine Lia’s refusal to recuse herself from challenge proceedings initiated by the rule of law NGO.

In the challenge proceedings, the NGO is requesting the court to compel the Police Commissioner to prosecute several individuals singled out by the Pilatus Bank inquiry. Repubblica is arguing that the magistrate's refusal to recuse herself constitutes a breach of its right to a fair hearing before an impartial tribunal.

This emerges from an application, filed this morning before the First Hall of the Civil Court in its Constitutional jurisdiction by Repubblika’s lawyer, Jason Azzopardi. In the application, the organisation argues that an article of the Code of Organisation and Civil Procedure which grants the magistrate presiding the challenge proceedings the sole discretion, immune to any legal challenge, is unconstitutional.

Repubblika President Robert Aquilina

But before examining the latest court filing, it’s probably best to recap how things got to this point.

Challenge proceedings against the Police Commissioner

In June this year, Repubblika had filed challenge proceedings against the Commissioner of Police demanding that said Commissioner be forced to immediately charge the former directors of Pilatus Bank and a number of other individuals, with a number of offences, amongst them money laundering and criminal conspiracy, as he had been ordered to by the magisterial inquiry into the bank, in 2021.

In the sworn application requesting the challenge proceedings, Repubblika said it had shown that the Pilatus inquiry had ended in March 2021 and that amongst its conclusions, it had ordered the police to press money laundering and criminal conspiracy charges against several individuals. These included “close friends of ex-Prime Minister Joseph Muscat and his ex-Chief of Staff Keith Schembri, as well as that the magisterial inquiry had found grounds for additional charges of trading in influence against Schembri,” it said.

The challenge proceedings had been assigned to Magistrate Nadine Lia, who is usually assigned such cases. Repubblika had immediately asked the magistrate to recuse herself from hearing this case, on the grounds that she is married to the son of Joseph Muscat’s lawyer, Pawlu Lia.

READ ALSO: Police Commissioner describes Repubblika's challenge to inaction after Pilatus inquiry findings as 'fishing expedition'

The Muscat connection

Back in 2017, Pawlu Lia had officially filed, on Muscat’s behalf, a request resulting in the Egrant inquiry, as well as setting out the inquiry’s “terms of reference” - the parameters within which it was to operate.

The inquiry was tasked with ascertaining whether a $1 million payment from a Pilatus account held by Azerbaijan’s Leyla Aliyeva’s 'Al Sahra FZCO,' had been made to ‘Egrant Inc’ in the name of Muscat’s spouse, Michelle.

In 2018, the Egrant inquiry concluded that it had not seen evidence of this transaction and found no evidence linking Egrant to the Muscats.

Lawyer Pawlu Lia (left) is the father-in-law of Magistrate Nadine Lia: Repubblika claim this family link makes the magistrate partial and unable to hear the challenge proceedings

Magistrate Lia had ordered Repubblika to submit this request in writing, before adjourning the case to 27 October, on which date Repubblika would be able to formally request the magistrate’s recusal.

The NGO’s lawyer said it was faced with a dilemma: hand over the information supporting its claim to a magistrate whom the organisation had already told it did not trust, or obey the law which requires maximum transparency when requesting recusals. Repubblika said it opted to obey the law, and disclosed the principal reasons for its request to the magistrate. In its written submissions, Repubblika also recalled an incident where Pawlu Lia had allegedly accosted the NGO’s president in Valletta and given him a 15 minute dressing down for raising the issue of his family ties in the case.

In a decree handed down on August 29, Magistrate Lia had rejected the request for her recusal.

Just days later, on September 1, Repubblika had filed its third request for the magistrate’s recusal, which was also refused a week later. In her decree, the magistrate also denied the NGO’s request to summons lawyer Pawlu Lia, her father-in-law, to testify in the next sitting and rebuked it for not having also made reference to the Egrant inquiry in its original application.

Last week, Repubblika published notarized documents which, it said, show that the separate inquiry into Pilatus Bank had also ordered the Attorney General to reopen the Egrant inquiry, because a report by forensic experts appointed in the Egrant inquiry had been overlooked, despite the experts finding evidence of a secret parallel accounting system at Pilatus Bank, which could have been used to conceal the alleged bribe payment.

READ ALSO: Repubblika publishes certified reproduction of Pilatus Bank inquiry conclusions

Repubblika accuse the Magistrate of ignoring the notarized documents it had attached to the application and of falsely stating that the list of suspects indicated in them did not mention her father-in-law’s clients, pointing out that “the words ‘amongst others’ had been written for a reason.”

It was argued that the fact that, as part of the decree refusing the third recusal request, the magistrate had made reference to the Valletta incident involving her father-in-law -describing it as a “spontaneous incident” - showed prejudice as to the nature of the incident before having heard either party testify. “The entirely reasonable suspicion must arise that Magistrate Lia had privately consulted with her father-in-law about this incident,” reads the application, arguing that this suspicion, alone, was a ground for recusal.

Lawyer’s former clients include Konrad Mizzi, Keith Schembri

Besides being Joseph Muscat’s lawyer, Pawlu Lia had also been disgraced former minister Konrad Mizzi’s legal counsel in a slew of libel cases MIzzi had filed over allegations of laundering money through offshore corporate structures.

Former minister Konrad Mizzi (left) and former OPM chief of staff Keith Schembri were clients of Pawlu Lia

Repubblika said that it was “well-known fact” that Chinese businessman Chen Cheng - who had been the primary negotiator in the deal which saw Shanghai Electric purchase of a stake in Enemalta - had set up a secret Panama company to pay bribes to Konrad Mizzi and Keith Schrmbri, “who coincidentally were both represented by the father-in-law of Magistrate Nadine Lia.”

The Chinese businessman had also been found to have held an account at Pilatus Bank.  “So the man alleged to have bribed the clients of Magistrate Nadine Lia’s father-in-law, held an account in the bank which is the subject of the challenge proceedings filed by Repubblika,” reads the application filed today. 

The NGO goes on to argue that as one of the lawyer’s heirs, the magistrate also had a financial interest in his earnings and wealth, which was “effectively a financial partnership” between them. “Ergo, a blatant and obstinate conflict of interest.”

The Chris Cardona connection

Another reason given by Repubblika to doubt the magistrate’s objective and subjective impartiality in this case was the fact that earlier in her legal career, the magistrate had been an employee, and later a “person of trust” of former minister Chris Cardona. After the 2013 election, Lia had been engaged as Cardona’s legal consultant on a €60,512 salary, and had also been appointed as Family Business regulator by Cardona. 

Former economy minister Chris Cardona had appointed Nadine Lia, before she became magistrate, as Family Business regulator

In 2019, Repubblika had won a legal battle to open a magisterial inquiry into a number of ministers, Cardona amongst them, over allegations of money laundering and corruption into the scandalous contracts gifting public hospitals to private company Vitals Global Healthcare. Both before and after Nadine Lia’s appointment as magistrate in 2019, Cardona had engaged her father-in-law as his lawyer.

“Many have forgotten, but Repubblika did not forget, that the then Dr Nadine Lia had participated in an electoral rally organised by the Labour Party in Rabat, Malta on May 3, 2017 and in her speech strongly encouraged the people to vote for the Labour Party ( a client of her father-in-law at the time, as it is today) and for Joseph Muscat, at the time her father-in-law’s client, as he is today.”

The NGO quoted part of her speech that day, in which she appears to be attempting to dismiss the scandals that had already started to rock Muscat’s administration as a mistake. “Yes… So what? Without mistakes you don’t get anywhere! Everyone makes mistakes…the point is not whether there was a mistake, but that we got here! If a mistake happened, it was part of the process!” Lia is quoted as saying.

It described as a “bizarre coincidence worthy of Franz Kafka,” the fact that magistrate Lia is today obliged to be and appear independent and impartial in the case filed by Repubblika to initiate criminal proceedings in connection with the Egrant inquiry, the same inquiry which had, in 2017, led her to address a Labour Party rally and describe the scandal as a mistake.

The magistrate had shown an “abnormal, strange and dangerous eagerness” in her decision to deny the requests for her recusal, Repubblika said, accusing her of “wanting to deliberately hide and help the forgetting that which Repubblika had revealed under oath,” which, it said, led it to conclude that “the situation is frightening, unprecedented and grave.”

Repubblika asked the court to urgently declare that Magistrate Lia’s refusals to its requests for her recusal breached the constitutional right to a fair hearing and to order that the article of the law giving the final word on recusals to the presiding magistrate is an anachronism which breaches the European Convention on Human Rights.

It also requested the court preventively order that this constitutional case be decided before the start of challenge proceedings on 27 October or to issue an urgent interim order to the Court of Magistrates, stopping Magistrate Lia from holding sittings or giving orders in connection with the challenge proceedings filed by Repubblika against the Commissioner of Police, which, it said should be immediately assigned to another magistrate.

Who is Magistrate Lia?

Magistrate Nadine Lia graduated from the University of Malta as a lawyer in 2004 and two years later qualified as a barrister for the jurisdictions of England and Wales. After working for some time as a member of the diplomatic corps, she worked as a barrister with Middle Temple Inn in London.

She studied at the University of Malta, the University of Western Ontario in Canada, and the University of Canterbury in Kent, in the UK. Lia then joined the Attorney General’s Office in Malta as a prosecutor and later started work as a lawyer in private practice where she was also a consultant on family business law.

While still a lawyer, Lia was appointed Family Business regulator after having helped pilot the Family Business Act. For a time, she also lectured at the Faculty of Law at the University of Malta.