Constitutional court rejects PN mayor's bid to stop Gozo magistrate hearing libel case

The constitutional court has turned down a request for the removal of Magistrate Joanne Vella Cuschieri from the libel case filed by Nationalist Party Victoria mayor Samuel Azzopardi against the former Gozo minister Anton Refalo.

Azzopardi wanted Vella Cuschieri to recuse herself from the case given that she had been a Labour Party candidate in the 2013 election.

Azzopardi opened libel proceedings over comments Refalo made in relation to a traffic accident in which Azzopardi was involved. Azzopardi had been found guilty of driving under the influence of alcohol by a Gozo court.

But when the libel case was assigned to Vella Cuschieri, Azzopardi had objected, saying that she had been a very active election candidate in the Labour Party shortly before her appointment to the Bench. Azzopardi argued that because he had filed the libel case as a Nationalist politician against a Labour politician, the case had an unshakeable political timbre and therefore should not be heard by Vella Cuschieri.

However, the defendants rebutted this argument, saying there were sufficient procedural safeguards to protect against undue influence.

Azzopardi’s lawyers, Nationalist MP Jason Azzopardi and Kris Busietta claimed that their client felt he would be disadvantaged to have a case that he had filed against a political opponent, heard and judged by a former colleague of that same opponent.

The plaintiff argued that the magistrate had been active in the political sphere just months before her appointment, had addressed the Labour general conference and declared her devotion to the party, as well as because that the magistrate had asked the plaintiff whether he would be objecting had Magistrate Paul Coppini, who 25 years ago had been a PN candidate, been assigned the case.

When the requested recusal did not happen, Azzopardi filed constitutional proceedings.

The constitutional court dismissed the claim, observing that although it was true that Malta was a politically polarised country - divided between two main parties - this partisan attitude should not be projected upon the courts because the measure of a judge’s impartiality was “not on the basis of his personal opinions, but the manner in which he serves the Constitution and the rule of law”.

Azzopardi appealed the decision but in a judgment handed down on Friday, the constitutional appeals court, composed of Chief Justice Silvio Camilleri and judges Giannino Caruana Demajo and Noel Cuschieri, ruled against the recusal.

The court said that the established principle was that the Maltese judicial system was founded on the premise that “the judge is presumed to be neither partial nor corrupt”. Both subjective and objective partiality had been ruled out, said the court.

The fact that a person externalises their views on politics could never automatically or directly lead to evidence of partiality. “Certainly it is not required that for a candidate to be ideal for a judicial appointment...that the person had never openly expressed his political, moral or religious convictions.”

Furthermore, added the court, the nature and grade of the magistrate’s pre-appointment ties to politics “did not objectively justify an appearance of lack of impartiality on her part nor could it cause concern about her impartiality.”

The court said it could not but remind the parties that Maltese society “is what it is” in terms of political limitations that would inevitably give rise to accusations of partisanship to those who had expressed a political opinion in the past.

“However, as long as these views are not aired or somehow externally manifested after taking the oath of office, and as long as a clear break between the expression of opinions… and the role of the judge and in the absence of clear proof to the contrary, it is the considered opinion of this Court that the objective perception of impartiality remains intact.”

The judges added that oath of office taken upon a judge or magistrate’s appointment acts to eliminate his or her every tie to the past with regards these views.

The court rejected the appeal.