Simon Busuttil was referred to as ‘LOO’ by judge's MEP wife, court hears

Former Opposition leader Simon Busuttil is insisting that Judge Antonio Mizzi cannot hear an appeal linked to the Panama Papers case because of his wife’s political activity.

Mizzi is married to Labour MEP Marlene Mizzi. Busuttil is contending that he cannot be treated fairly when the judge’s wife had openly aired her views on the Panama Papers scandal in the European Parliament and on Facebook.

In court this morning, Busuttil’s lawyer, Jason Azzopardi said Marlene Mizzi had repeatedly made political arguments in favour of the Prime Minister and hit out at Busuttil, referring to him with the derogatory acronym ‘LOO’ (Leader of the Opposition). 

The case is the latest iteration of the process started when Busuttil called upon the Maltese courts to launch a magisterial inquiry into a number of high profile Maltese figures mentioned in the Panama Papers leak.

The people include Prime Minister Joseph Muscat, his chief of staff Keith Schembri, Tourism Minister Konrad Mizzi, former Allied Newspapers managing director Adrian Hillman and Nexia BT chief Brian Tonna.

The parties today made oral submissions in a Constitutional Court sitting presided by Chief Justice Joseph Azzopardi, and judges Giannino Caruana Demajo and Noel Cuschieri.

Magistrate Ian Farrugia, presiding over the original case, had decreed that the prerequisites for an inquiry had been met, and gave the green light for a magisterial inquiry to establish whether money-laundering laws had been broken by government officials opening offshore companies in Panama.

But the seven subjects of the inquiry each filed separate appeals to this decision. The appeals were assigned to be heard by Judge Mizzi, which was the catalyst for Busuttil to challenge the judge's suitability to hear the case on the fact that the judge's wife had publicly expressed an opinion on the Panama Papers scandal.

In court on Wednesday, lawyer Victoria Buttigieg, for the Attorney General, argued that the judge was presumed impartial.

“Here we are talking about the actions of a third party. Just because the actions belong to his wife, this doesn’t mean they are also his,” she said, adding that the fact that Marlene Mizzi held elected office meant that she was also subject to scrutiny and this should comfort the defence.

Busuttil wants to choose judge, parties contend

Professor Ian Refalo, appearing for Hilman agreed with the AG. “The plaintiff is complaining because the judge has political opinions… so are we now going to test every judge on their political opinions? It makes no sense to say that justice will not be done because the wife of a judge expresses an opinion.”

Refalo said he could not find logic in the argument being put forward by Busuttil. 

“It’s saying that justice cannot be done unless they choose the judge themselves. If that’s the case, good bye rule of law, good bye everything,” he said.

Lawyer Edward Gatt for Keith Schembri, argued that the first court did not demonstrate a proper grasp of what happens in the in genere inquiry.

“To give a correct pronouncement the court must understand what the in genere is – The magistrate’s job in the inquiry is to preserve evidence and once this is done, give its recommendation [on whether to indict or not]. This is not an appeal from Magistrate Ian Farrugia’s decision on the grounds as to whether there is an inquiry. This is an application for a revision, we’re missing the wood for the trees,” Gatt said, insisting the opposing party was doing this “on purpose”.

Gatt argued that the Criminal Code made it clear that the magistrate could not be recused in an inquiry.

Azzopardi, who is appearing for Busuttil, hit back, saying that he was not trying to shackle the political involvement of an MEP and arguments against safeguards because this was a pre-trial stage were “dangerous.”

“Taken to the extreme this would mean that there is nothing wrong with appearing before a corrupt or biased judge at this stage,” he said.

Azzopardi said there was nothing to tarnish the integrity of Judge Mizzi but it was inconceivable that his wife would not try to speak to him about the case, because of her loyalty to the party.

“Inquiries are urgent because they need to preserve evidence, but we have been almost 12 months debating whether the judge should hear it,” added the lawyer, asking how this saga had affected public trust in the courts.

He made positive reference to the refusal by Judge Edwina Grima to hear Administrative Law Enforcement cases because a person close to her was a member of Birdlife and the abstention of magistrate, now judge, Consuelo Scerri Herrera from the Daphne Caruana Galizia murder inquiry, following protestations by the victim’s family.

The European Court of Human Rights had found a breach of fair hearing in a case where a judge’s daughter was married to the son of one of the lawyers, said Azzopardi. “How much more so when the judge and the party are married?” he asked.

The court will give its ruling on 29 October.