Pilatus challenge proceedings should not stop while State Advocate appeals ruling to reassign case to new magistrate

A judge has granted the State Advocate permission to file an appeal against a part-judgment that ordered challenge proceedings against the Police Commissioner to be taken out of Magistrate Nadine Lia’s hands and reassigned to another magistrate.

However, Mr Justice Ian Spiteri Bailey refused the State Advocate's request to suspend the challenge proceedings until the appeal is decided.

On 19 October, the judge had issued the interim measure, ordering the magistrate to desist from continuing to preside the case, as part of the constitutional proceedings filed by Repubblika over Magistrate Nadine Lia’s refusal to hand over the Pilatus chalenge proceedings to another magistrate.

The challenge proceedings request the court to compel the Police Commissioner and the Attorney General to file charges against Pilatus Bank officials who were earmarked for prosecution by a magisterial inquiry.

Magistrate Nadine Lia presided over those challenge proceedings, with Repubblika asking that she recuse herself in view of her family ties to lawyer Pawlu Lia, who was Joseph Muscat's lawyer. The magistrate had refused to do so, precipitating the filing of the constitutional case.

The State Advocate subsequently requested the court’s permission to file an appeal against the interim measure and suspend the challenge proceedings until the constitutional issue was decided.

In a decree handed down this morning, the judge said that the parties agreed that the issue at stake was an important one. The State Advocate had argued that the judgement was a landmark one and that it would be better if it had the confirmation of the Constitutional Court.

The judge, therefore, upheld the State Advocate’s request and granted permission to appeal to the Constitutional Court.

But with regards to the request to suspend the case until the Constitutional case was decided, the judge pointed out that this issue should never have reached his court in the first place, as it was the responsibility of the Registrar of Courts to implement his decision immediately.

The court expressed its dismay at what it described as a “serious shortcoming” by the Registrar. “Interim measures must have immediate effect, otherwise they lose their point,” said the judge, adding that “It is precisely because of the Registrar’s inaction that this issue must now be discussed here.”

Spiteri Bailey praised the good sense on the part of the State Advocate lawyers in making joint submissions with the plaintiff before Magistrate Nadine Lia. “The next day, this court was informed that [Lia’s] court had issued a decree informing [Spiteri Bailey’s] court that the challenge proceedings had already been adjourned and that no request for an suspension or interim measure had been made by either of the parties.”

The judge went on to say he was “perplexed as to how, if the interim measure was being discussed, that none of the parties had mentioned this during their submissions.” Had it been so, it would be hard to explain why these proceedings were even necessary, observed the judge.

“One can hardly understand why all this was needed when the Court of Magistrates had already decreed on the issue on 15 September 2022, in the manner it expressed.”

But having scrutinised the acts of the case, the judge ruled that this decree did not exist in the case file, either. It was clear, said the judge, that on that date, no decree had been given, but subsequently the court had issued a decree which could have been interpreted as was described by the magistrate, but “had not been understood in this way even by both of the parties.”

As there was now a clear intention to adjourn the case to a later date, the issue had now been overcome, observed the judge. “But this is not enough, because the challenge proceedings should continue and not be stultified,” Spiteri Bailey ruled. An interim measure must be obeyed despite judicial proceedings to stop it, he said.

Rejecting the State Advocate's request in this regard, the judge pointed out that it should not make a difference to either the State Advocate or the police if the challenge proceedings were to continue.

The court, therefore, upheld the State Advocate’s first request but rejected the request that it suspend the challenge proceedings until this case is concluded.

The constitutional case was adjourned to January.

Lawyer Jason Azzopardi is representing Repubblika in these proceedings.