Simon Busuttil could not be heard fairly by the husband of a woman who referred to him as “LOO,” an acronym for Leader of the Opposition, on the internet, his lawyer Jason Azzopardi has submitted.

Parties made oral submissions this morning in a Constitutional Court sitting presided by Chief Justice Joseph Azzopardi, judge Giannino Caruana Demajo and judge Noel Cuschieri. 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 - chief among them the prime minister's Chief of Staff Keith Schembri and Tourism Minister Konrad Mizzi.

Magistrate Ian Farrugia, presiding over that 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, which lengthened the process significantly. 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.

Azzopardi was referring to comments made by MEP Marlene Mizzi, wife of judge Antonio Mizzi, who had openly aired her views on the Panama Papers scandal not only when speaking in the European Parliament but also through several Facebook posts, in which she repeatedly made political arguments in favour of the Prime Minister and hit out against Busuttil, referring to him as  “LOO”, an acronym for Leader of the Opposition.

Lawyer Victoria Buttigieg, for the Attorney General, argued that the judge is presumed impartial. “Here we are talking about the actions of a third party. Just because the actions of his wife, doesn’t mean they are also his,” she said, adding that the fact that Marlene Mizzi held an elected office meant that she was also subject to scrutiny and that this should comfort the defence.

Professor Ian Refalo, appearing for Adrian Hilman in the proceedings, 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.”

“I cannot find the logic. Its 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.” Lawyer Edward Gatt for Keith Schembri, argued that the first court did not demonstrate a proper grasp of what happens in the inquiry in genere. “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.”

“The other side is doing this on purpose,” Gatt said. “God forbid if someone in the in genere has an interest – the point is that the person subject of the inquiry is unaware of the investigation, not to make it a pre-trial court. There is no juridical interest in an inquiry.”

“If we extend this reasoning, we can check and see what government appointed which judge or magistrate in every case. In fact the criminal code states that the magistrate cannot be recused in an inquiry. You cannot do it.”

Lawyer Jason Azzopardi, for Busuttil hit back, saying that he wasn’t trying to shackle the political involvement of an MEP and that the arguments that safeguards do not apply because this is pre-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.

The code of judicial ethics speaks of manifest prejudice, not just the grounds stated in the Code of Organisation and Civil Procedure, as grounds for recusal.

Azzopardi said that there was nothing to tarnish the integrity of judge Mizzi, but that 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?” Azzopardi said.

Busuttil could not be heard fairly by the husband of a woman who referred to him as “LOO,” an acronym for Leader of the Opposition, but also a play on words using the slang term for a toilet, submitted the lawyer.

The court will give its ruling on 29 October.