Constitutional Court throws out Yorgen Fenech case over selection of trial judge

The Constitutional Court has rejected Yorgen Fenech’s fair hearing breach claim, pointing out that the law did not give the Attorney General a say in the process of selecting the trial judge, and slamming the court's administration for never questioning the mistaken practice.

Fenech stands indicted for complicity in the murder of Daphne Caruana Galizia and criminal conspiracy and is expected to go on trial in the coming months.

His legal team argued that Fenech’s right to a fair hearing had been breached because the nomination of Madam Justice Edwina Grima to preside over his eventual trial by jury, following the abstention of Mr. Justice Aaron Bugeja, had been vetted by the same Attorney General who issued the Bill of Indictment against him.
But in a decision handed down yesterday, the Constitutional Court, presided by judges Giannino Caruana Demajo, Tonio Mallia and Anthony Ellul, held that the selection of the trial judge had been made according to law because it had been made by Chief Justice Mark Chetcuti.

The law does not give the Attorney General any say in the selection of the Judge, noted the court.  

In this case, for some reason, noted the judges, the Chief Justice’s recommendation of judge Grima had been sent by the deputy registrar for the criminal courts to the Attorney General, together with a note which read “The Chief Justice’s recommendation is being referred for your kind legal vetting and onwards transmission to the Minister for Justice and Governance.”

On August 20, 2012, the Attorney General had sent the document to the Minister for Justice, together with another note, reading “Recommendation by the Chief Justice is hereby being referred. Subject to your approval, you may wish to advise H.E. the President accordingly.” The next day, the minister sent the document to the President, attaching a note saying “Your Excellency is respectfully advised to approve duties as detailed at Red 1.” Presidential approval was granted two days later, on August 23.

Fenech’s claim had not found favour with the First Hall of the Civil Court in its Constitutional jurisdiction, which ruled that besides the absence of evidence to support the serious allegations he was making, “his general behaviour continues to strengthen the court’s understanding that the plaintiff’s complaint was frivolous, intended as the nth attempt to prolong the proceedings unnecessarily.”

The Constitutional Court’s three judges were scathing in their criticism as they dismissed Fenech’s subsequent appeal and chastised the court administration for never having questioned the practice. 

“We have seen that the law does not give any role or power, neither to the Attorney General nor, when the Chief Justice has made a recommendation about subrogation, to the Minister of Justice, in the selection of the judge to be subrogated. 

“In today's case the act of subrogation was sent to the Attorney General by a court registry official because that is the practice: a wrong practice as a result of the mentality, more or less prevalent in the court administration, that ‘we continue to do this because this is what we’ve always done,’ unfortunately with the approval of the Attorney General who should have immediately sent the documents back with a note stating that there is no room for her intervention in the matter. 

“Instead, she went along with the practice without seeing whether it has a legal basis, the same mentality that creates extra formalities and inertia that are among the main causes of the system's inefficiency.”

“To remove any doubt for the future, this court expressly states that the first court was wrong to say that ‘the signature [of the Attorney General] was necessary in order to continue the nomination process’; the court registrar was also wrong when he said that ‘before all the signatures are there you will not take it to the President of Malta’; and the Attorney General who signed the act of subrogation was wrong. The signature required is only that of the Chief Justice for the subrogation to go to the President of Malta, regardless of the practice that has been introduced. 

“The question remains: with this incorrect practice, has the Attorney General been given powers that the law does not want her to have in the selection of the surrogate judge?”

In this case the choice of the surrogate judge had been made by the Chief Judge before the mistaken initiative was taken to send the act to the Attorney General.  “This was already enough to bind the President of Malta to act ‘on the recommendation of the Chief Justice’ according to the…Constitution, which states that the powers of the President of Malta regarding substitute judges ‘shall be exercised on the recommendation of the Chief Justice.’”

Although the law called this choice made by the Chief Justice a "recommendation," the judges observed that it is, in fact, a binding mandate. The Attorney General had no role, direct or indirect, in that choice, and he had no power to change it and neither did the President of Malta have a choice as to whether or not to follow the recommendation.

“Effectively then, the legal vetting that the Attorney General could have done was just an empty exercise, useless and irrelevant because she could not change anything and it did not change anything. It only served to create this useless episode because the Attorney General relied on practice without first seeing what the law says.”