This week threw up a court case which, as far as we know, is unprecedented in Malta’s legal history.

For the first time ever, a Magistrate was forcibly removed from a case which she was assigned to. 

This happened this week when Judge Ian Spiteri Bailey ordered that magistrate Nadine Lia be removed from a case which the NGO Repubblika filed to compel the Police Commissioner to file charges against officials from Pilatus Bank.

The NGO had long argued that Lia should not hear the case because she is related by marriage to Joseph Muscat’s lawyer Pawlu Lia – Joseph Muscat having featured prominently the Egrant case which was referenced by Repubblika during the case.

Lia had refused to recuse herself three times and also refused to allow her father-in-law, Pawlu Lia to be summoned to testify.

Judge Ian Spiteri Bailey granted the interim measure in a decree issued on Wednesday, ordering that the challenge proceedings filed by Repubblika be assigned to another magistrate "to ensure that justice is not only done, but is seen to be done".

In his decision, the judge noted that the same magistrate had previously recused herself from several other proceedings on the same grounds as those cited by Repubblika - namely that she is related by marriage to Joseph Muscat’s lawyer, Pawlu Lia.

The judge said that Repubblika had managed to prove at prima facie level that their fear of not having a fair hearing were real and imminent. He said the case at hand was a sensitive one and of public interest.

Spiteri Bailey ruled that Repubblika's challenge proceedings could continue but the case be assigned to a new magistrate.

It is good to note that there are particular reasons enshrined in the law for when a member of the judiciary judges that they must recuse themselves from a case, and that these are largely in instances where there can be bias or lack of impartiality in how the judiciary member at hand handles the case.

Further to that, the Code of Ethics for Members of the Judiciary makes a couple of points with regards to the impartiality of members of the judiciary.  It states, for instance:

“Members of the Judiciary shall conduct themselves, both in Court and outside Court, in such a manner as not to put into doubt their independence and impartiality or the independence and impartiality of the office they hold.”

Judge Spiteri Bailey’s judgement states that one of the parties in the case – Repubblika – had proven that their fear of not having a fear hearing was real and possible, so the judgement itself is a clear statement that Lia’s impartiality was called into question.

This is most grave, because for justice to be done it must be done without fear or favour, and it must be done in a totally impartial manner.

However, it took an unprecedented decision from the constitutional court in order to ensure that justice truly is being seen to be done in the most correct manner.

But more action now is needed.  The system which dictates how recusals takes place perhaps warrants being revisited: as things stand, it is the magistrate or judge hearing the case who must decide whether they recuse themselves for the case. 

It’s a system which hasn’t had any issues in the past, but this case now sets a precedent.  The great consolation is that the Constitutional court acted to protect the interest of the aggrieved party, but really and truly it shouldn’t have come to that.

Magistrate Lia shouldn’t have let it come to that.