Court rejects recusal bid in constitutional fair-hearing case

A court has rejected a request by Anna Muscat to recuse Judge Doreen Clarke from hearing her constitutional claim alleging a breach of her right to a fair hearing.

Muscat had filed the recusal request on 23 October, arguing that the judge had expressed herself on the merits when, days earlier, she refused an application for a provisional measure that sought to suspend the work of court-appointed architect Mario Cassar. The state advocate opposed the request in submissions filed on 3 November.

The underlying constitutional case concerns Muscat’s claim that a judgment delivered in June 2022, later confirmed on appeal, violated her fair-hearing rights under Article 39 of the Constitution and Article 6 of the European Convention on Human Rights. That 2022 judgment had tasked Cassar with preparing plans necessary to implement the court’s decision once the case became final.

In her recusal application, Muscat relied on Article 734(1)(d)(ii) of the Code of Organisation and Civil Procedure, insisting that the wording of the decree rejecting the provisional measure indicated a view on the substantive issues. She maintained that this amounted to an expression on the merits.

The court noted that its October decree had carried out the type of prima facie assessment required at the provisional-measure stage, stressing that the examination “does not appear that there is still some matter… left to be determined” and that the applicant had not shown an apparent breach of her rights. This, the court said, did not constitute a determination of the principal issues.

The judge said that the law demands an objective basis for recusal, not fears that are merely subjective or imagined. She emphasised that judges are obliged to sit in cases assigned to them unless clear legal grounds require otherwise and warned against attempts at forum shopping.

In reaching its conclusions, the court referred to earlier jurisprudence, including the 2018 judgement in Alfred Degiorgio v Attorney General, which distinguished between the limited assessment carried out for a provisional measure and a definitive decision on the merits. The court reiterated that provisional remedies involve temporary protection based on prima facie evidence and do not prejudice the ultimate outcome.

Finding no objectively verifiable grounds for recusal, the court dismissed the request and ordered the continuation of proceedings. Costs were awarded against Muscat.