The Chief Justice has been called upon to abstain from presiding over an appeal filed by civil society 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 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 as to the integrity of the Chief Justice, 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.
In addition to assessing candidates’ suitability 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 of the issue by ignoring Repubblika’s call for an interim measure and assigning duties to the three newly appointed Magistrates and Judges, said the lawyer.
The request for the interim measure had been made in the form of a judicial protest and subsequently by a court case instituted filed shortly before the judicial members were sworn in.
No one should be a Judge in one’s own case (nemo iudex in causa propria), argued the lawyer, adding that the Judges’ code of ethics contemplated abstention in cases where there was “a manifest danger or prejudice to fair hearing.” In addition, the Constitution declared that every party had a right to appear before an impartial judge, said Azzopardi. Even if there were no statutory legal grounds for and 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.
Attorney General Peter Grech retorted that judicial appointments were made through the intervention of the Prime Minister, Grech said, 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.