Hearing into recusal of former judge and lawyer continues

Judge Lino Farrugia Sacco has presented the Court of Constitutional Appeal with the letter he sent to the Speaker of the House, demanding that a motion for his impeachment is dropped. He also exhibited a copy of the recommendations the commission sent to the House.

The Commission for the Administration of Justice has found prima facie evidence that Farrugia Sacco's tenure of the post of president of the Malta Olympic Committee, in breach of the judiciary's code of ethics, had compromised his authority as a judge when he was filmed by undercover reporters from the Sunday Times of London in a discussion on the resale of tickets for the Sochi Winter Olympics.

The Court of Constitutional Appeal is to determine whether Farrugia Sacco's request to recuse two members of the CAJ - Chamber of Advocates president Reuben Balzan, and judge emeritus Victor Caruana Colombo - should be upheld.

The CAJ's legal counsel, Prof. Ian Refalo, told the court that it is the House of Representatives that has to now decide whether Farrugia Sacco was in breach of the code of ethics and whether he should remain a member of the judiciary. "The Commission forwarded to Parliament it's advice and recommendations. Parliament now has to decide whether or not to impeach the judge, after again hearing all evidence related to the case," Refalo said.

"Such proceedings safeguard democracy because the commission is neither judge nor jury, but an advisory body.This case no longer concerns the appellant's civil rights but arguments about public and political obligation relating to the tenure of one's public office."

Victoria Buttigieg, for the Attorney General, said the court had no jurisdiction in scrutinizing the functions of the commission. "The commission has not given the House a judgement but simply an advisory report. Hence at this stage no one is in a position to claim a breach of the right to a fair hearing," Buttigieg explained. The lawyer  also questioned the reason behind the inclusion of the AG in the proceedings. "Since the Prime Minister is himself part of the proceedings, the presence of the AG is not understood unless it is simply there because this is a constitutional case".

Executive vs the judiciary

Dr Alex Sciberras, one of three lawyers appearing for Judge Farrugia Sacco, demanded to know why there was an urge to eliminate all rules of natural justice and exclude the CAJ from being scrutinised by the courts. "No commission or tribunal should escape the watchful eye of the courts nor can such bodies be allowed not to observe the civil rights of individuals," he said.

Quoting the separation of powers between the three pillars of democracy, Scibberras argued that should the executive be deemed superior to the judiciary, the rule of law would collapse.

The CAJ's conclusions and decisions have legal consequences which could not be overlooked, Sciberras said, citing a judgement of the European Court of Human Rights on fair trial. Sciberras further added that it was the prosecution's obligation to prove the safeguards of Article 6 of the Constitution do not apply in the case of Judge Farrugia Sacco.

The Attorney General had previously argued that the CAJ could not be found in breach of the appellant's right to a fair hearing, saying the CAJ was not bound by the process of natural justice. Since it only forwards recommendations, and not decisions, the CAJ could not breach an article which does not apply to its functions.

Addressing the court on behalf of the appellant, retired judge Phillip Sciberras quoted former Prime Minister Lawrence Gonzi in saying that Farrugia Sacco's case was a politically loaded case.

The defence lawyer argued that one of the charges facing Judge Farrugia Sacco was having ignored the 2007 decision of the CAJ which called for his resignation from MOC president. "The CAJ forwards no mere advice, but a decision that is binding... President George Abela abstained himself from chairing the CAJ because back in 2007 he was Farrugia Sacco's legal advisor. That was the right and proper thing to do, but unfortunately others did not follow his example," Philip Sciberras said.

Chief Justice Silvio Camilleri was also back then serving as Attorney General, advising the government on the CAJ.

"Attorney General Peter Grech presumably advised the government about the impeachment motion in 2012. Retired judge Victor Caruana Colombo was involved in the amendments of the Judiciary's Code of Ethics in 2004 and formed part of the 2007 commission. The president of the Chamber of Advocates Reuben Balzan has an affinity with the Nationalist Party who tabled the motion against the judge.... All these had a moral obligation to recuse themselves or be recused, but neither of them did," Sciberras stated. "Our appeal against the presence of Caruana Colombo and Balzan was sidelined on the presumption that every member on the Commission would reach a fresh and unbiased decision irrelevant of his past and affiliations."

Political affiliations could imply bias

Sciberras said it was unacceptable to have politically-biased board members when the Prime Minister who tabled the impeachment motion himself recognised the case as being "politicallu loaded".

He said Victor Caruana Colombo was appointed judge by the Nationalist Party, while lawyer Reuben Balzan was campaign manager of then PN deputy ;eader Simon Busuttil. "Given Malta's political scene, everything is looked upon through a political filter. Judge Farrugia Sacco has a right to be investigated and judged by people, who however have no connection with the 2007 commission and no political affiliation."

Lawyer David Farrugia Sacco, son of the appellant and a legal counsel for Farrugia Sacco, further explained the political involvement of Dr Reuben Balzan.  "Dr Balzan still works for the legal firm owned by Francis Zammit Dimech who at the time of the impeachment motion was a minister. When former Prime Minister Lawrence Gonzi retired from legal advisor of Mizzi Group, his post was taken up by Dr Balzan. It is the summation of these issues which could prejudice  Dr Balzan's position as member of the Commission."

No proof of prejudice - Refalo

In his concluding replica on behalf of the plaintiff, Dr Ian Refalo held that having a political opinion does not preclude a person from serving on a commission. "Neither former Judge Victor Caruana Colombo nor Dr Reuben Balzan ever expressed their views about the case in public. No circumstances showed they were prejudiced in any way," he said.

The court is presided by Tonio Mallia, Joseph R. Micallef, and Noel Cuschieri. The court will deliver judgement on Monday 27 January.