Repubblika asks Chief Justice to abstain from hearing judicial appointments case

Lawyers Simon Busuttil and Jason Azzopardi ask Chief Justice to abstain and avoid ‘judicial schizophrenia’

Chief Justice Joseph Azzopardi (Photo: James Bianchi/MediaToday)
Chief Justice Joseph Azzopardi (Photo: James Bianchi/MediaToday)

The Chief Justice has been asked to abstain from presiding an appeal filed by NGO Repubblika, in which it is challenging the appointment of new members of the judiciary.

The case had been filed in an attempt to annul judicial appointments until the government implemented the Venice Commission’s recommendations on the selection process. Repubblika is arguing that no new members of the judiciary should have been appointed until a revised system of appointments was in place.

In May, the First Hall, Civil Court in its constitutional jurisdiction had ruled that Repubblika did not have the required juridical interest under Maltese law, but had also postponed a decision about a reference to the European Court of Justice on the issue.

That Court had upheld appeal requests from both parties, stating that the issue required direction from the Constitutional Court.

However, when oral submissions began on Monday afternoon, Repubblika’s lawyers, Jason Azzopardi and Simon Busuttil, unexpectedly asked the Chief Justice to abstain.

 “Before we start, I wish to address your Honour. Will you abstain?” asked Azzopardi, directing his question at Chief Justice Joseph Azzopardi.

The judge invited the lawyer to explain himself.

Emphasising that the challenge was not due to doubts on his integrity, Azzopardi explained that in terms of the Constitution it was the Chief Justice who made recommendations to the Prime Minister about the suitability of prospective candidates to the Bench.

Additionally, the Chief Justice also had the sole prerogative of assigning duties to newly appointed magistrates and judges, Azzopardi pointed out.

Dismissing the request would cause “judicial schizophrenia”, Azzopardi warned, since the Chief Justice would have, on one hand, recommended the appointments and assigned duties to them, while on the other hand, was now being asked to annul the same appointments.

The Chief Justice had already expressed his view on the issue by ignoring Repubblika’s call for an interim measure and assigning duties to the three newly-appointed magistrates and judges, the lawyer said.

The request for the interim measure had been made in the form of a judicial protest and subsequently by a court case filed shortly before the judicial members were sworn in.

No one should be a judge in one’s own case, Azzopardi argued, adding that the judges’ code of ethics contemplated abstention in cases where there was “a manifest danger or prejudice to fair hearing”.

Azzopardi said the Constitution declared that every party had a right to appear before an impartial judge. Even if there were no statutory legal grounds for an abstention, there had been cases where a judge or magistrate had abstained on the premise that “justice must not only be done but must be seen to be done”, he said.

Ruling next week

Attorney General Peter Grech retorted that judicial appointments were made through the intervention of the Prime Minister, arguing that the Chief Justice only made recommendations regarding the suitability of prospective magistrates or judges.

In assigning cases, the Chief Justice did not make any stipulations or express his opinions on the merits of the case, Grech said.

The AG argued that there was no issue which could legitimately be raised under the legal articles regulating such a challenge.

Having heard both parties make their submissions, Chief Justice Azzopardi, assisted by Mr Justice Giannino Caruana Demajo and Mr Justice Noel Cuschieri, adjourned the case to next week for a definitive ruling.

If rejected, the court would then proceed to hear the appeal.

Deputy AG Victoria Buttigieg also appeared on behalf of the respondents.