Constitutional court to urgently hear State's appeal in Repubblika's recusal case

Repubblika’s challenge proceedings against the Commissioner of Police regarding the Pilatus Bank investigation has been suspended until the State Advocate’s constitutional case is urgently concluded.

The Constitutional Court ruled that this way, should the Court of Magistrates rule against Repubblika’s challenge, that decision would still be subject to an appeal to the Criminal Court.

The decision comes amidst Repubblika’s resistance to having a case they filed, in which they are asking the court to force the Commissioner of police to charge individuals earmarked for prosecution by the inquiry into Pilatus Bank, being heard by Magistrate Nadine Lia. 

Repubblika are objecting to Lia presiding that case on the basis of the magistrate’s family ties to lawyer Pawlu Lia, legal advisor to former Prime Minister, Joseph Muscat. Murdered journalist Daphne Caruana Galizia and later, Repubblika, had accused Muscat of using the bank to launder funds received as a result of corruption.

Earlier this month, the State Advocate had filed an appeal to a judge’s granting of an interim measure that ordered the challenge proceedings to be taken out of Magistrate Nadine Lia’s hands and reassigned to another magistrate. 

The judge had also refused the State Advocate's request to suspend the challenge proceedings until the appeal is decided.

In the interlocutory decree handed down by Mr. Justice Ian Spiteri Bailey earlier this month, the court stated that “there must never be a hostile attitude between a judge or magistrate and the parties or one of the parties. [The court] feels duty bound to add however, that none of the parties should or should be tolerated to create the situation of hostility between them and the court itself. 

“There are rules and clear laws of procedure and it is expected that every court make the opportune pronouncements according to law should it see that this is happening.  Respect towards the authority of the court is always expected of every party.”

Spiteri Bailey had gone on to say that “the fact remains that in this case, the situation was borne of that which appears to have taken place in the courtroom, particularly the disagreement on the version of events about how certain things took place during the sitting,” noting that sworn declarations and news reports of the sitting contradicted that stated by the magistrate’s court in its decree.

The judge had noted that the fact that the magistrate had “expressed herself about a fact 

that did not emerge from anywhere in the acts, which had neither been submitted by any of the parties, certainly creates serious doubts in the minds of one party or the other about the handling of proceedings.”

It was in this context, that the judge had agreed that the necessity of the interim measure stopping the case from being heard by the magistrate had been sufficiently proven, as everything pointed to this being “an extreme and extraordinary case, deserving of a provisional remedy.”

State files appeal to the Constitutional Court

The State Advocate subsequently filed an appeal against this interlocutory decree. The Constitutional Court handed down its decision in that appeal today.

It its decision the court, composed of Chief Justice Mark Chetcuti, Mr. Justice Giannino Caruana Demajo and Mr. Justice Anthony Ellul, observed that Repubblika had resorted to seeking a Constitutional remedy because the Criminal Code does not provide parties in challenge proceedings the faculty of filing an appeal to a refusal of a recusal request.

The remedy being sought was clear : the removal and substitution of Magistrate Lia from presiding over the challenge proceedings. That remedy had effectively already been granted in Spiteri Bailey’s interlocutory decree. 

“By means of the 19 October 2022 decree, the remedy was given before the case started being heard. The purpose behind a provisional measure should not be to give a final remedy before all the evidence is exhibited and the court is in a position to judge the case.” It was only then that the court would be in a position to decide whether there was a breach or a potential breach of fundamental rights, ruled the judges. 

Neither should a request for an interim measure be used for a court to express some opinion about the merits of the case before it, said the judges. “The expectation that a court pronounce itself in some way about the merits at this early stage of the constitutional case is mistaken.”

The judges highlighted the fact that were the challenge proceedings to continue before Magistrate Lia and a subsequent Constitutional case found in favour of Repubblika, the court has the power to put aside every decision given by the Court of Magistrate presided by that magistrate.

This was besides Repubblika’s right to file an appeal before the Criminal Court should the request, made as part of the challenge proceedings, be refused. “Therefore there is no risk that the appellant ends up deprived of an effective remedy if it is not granted a provisional measure while the case is ongoing. 

The Constitutional Court ordered that the challenge proceedings be suspended until Repubblika’s constitutional case is decided, also ordering that the constitutional case be handled with urgency.

This was solely to ensure that should Repubblika’s constitutional case be decided in its favour, the breach of its right to a fair hearing would not have continued during the challenge proceedings.

In handing down this decision, the judges said they had taken into consideration the sensitivity of the challenge proceedings and the position taken by the Commissioner of Police. “An issue of public interest, when one considers the impact the Pilatus Bank case has made on the local scene.”

Another factor that had to be taken into account was the argument raised by Repubblika’s lawyer Jason Azzopardi, who pointed out that some of the alleged offences are already time-barred, the judges said.

The court revoked the decision to allocate the challenge proceedings to another magistrate and instead, ordered that those proceedings be suspended while the constitutional case continues to be heard with urgency.