Former Prime Minister Joseph Muscat testified in court on Thursday as he continued to seek the recusal of the magistrate who is leading the inquiry into the controversial deal to sell three public hospitals to Vitals Global Healthcare.

Muscat had filed a request in the Constitutional Court in order for Magistrate Gabriella Vella to be removed from leading the magisterial inquiry, stating that he had lost faith in her impartiality.

Muscat had already asked for the magistrate to recuse herself, saying that the fact that two of her family members had posted on social media supporting the cause of the NGO Repubblika – which had requested the inquiry into the hospitals deal – impinged on her impartiality.

Magistrate Vella however had refused the recusal request, prompting Muscat to file constitutional proceedings, which began on Thursday.

The NGO Repubblika also filed an application to be considered as a third party in the case, with the NGO President Robert Aquilina saying that if the request is accepted, then Repubblika would summon Muscat himself to testify.

However, Judge Doreen Clarke did not decree on Repubblika’s application on Thursday – and neither did she decree on requests by Muscat for the case to be heard urgently and for an interim measure against Magistrate Vella to be handed down.

Muscat’s lawyer accuses Repubblika of wanting to be in case just to face Joseph Muscat

The first point to be discussed in the sitting was two separate applications by Repubblika President Robert Aquilina and Repubblika itself to be considered as a party in the case.

Lawyer Jason Azzopardi, speaking for both Aquilina and Repubblika, made the case that Repubblika is the only association in Malta which, by statute, is bound to promote the rule of law and all that brings with it, and therefore has the interest to be a party in the case.

He said that there is an identical precedence which the court should consider, and referred to the opening of a constitutional case by former minister Konrad Mizzi in this same case back in 2019. Azzopardi said that in this case, Judge Joseph Zammit McKeon – who was hearing the case – accepted the requests of both former PN leader Simon Busuttil and Repubblika to be parties in the case.

Lawyer Charlon Gouder, representing Muscat, meanwhile countered that in previous cases – such as one concerning Simon Busuttil – the court had determined that for a party to be allowed to be a party in a case their interest must be juridicial.

He said that Repubblika’s and Robert Aquilina’s interest in the case is not juridicial, but their interest is the outcome of this case – which is not something which qualifies as having juridicial interest.

Gouder then went on the offensive, saying that Repubblika can under no circumstances qualify to intervene in the case, and only wants to be admitted into it for one reason: to confront Muscat.

“Do you want to know why they want to intervene?,” Gouder asked.

“I think Robert Aquilina gave his reasons on Facebook this morning: because they want to confront Joseph Muscat.  Addio statute, addio rule of law – we only cite rule of law when it suits us,” he said.

He referred to a part of Aquilina’s post where he referred to Muscat as a “corrupt Prime Minister” and challenged anyone to find one court sentence which proves this assert.

“They couldn’t face him in a political arena, so now they want to face him here in these proceedings,” Gouder said.

He continued by saying that Aquilina had written that he was intervening in the case so that the justice system is not reduced to a farce, an assertion which Gouder implied was a show of a lack of faith in the court.

“It is not because they have a legitimate interest in this case, or because it will impact them.  They want to intervene – and here is your responsibility, Madam Justice – so that they can challenge Joseph Muscat face to face in this courtroom,” Gouder said.

In his submissions, State Advocate lawyer James D’Agostino said that while he agreed that the requests of both Repubblika and Aquilina to be parties in the case should be refused, he must distance himself from the “narrative” that Gouder had presented.

“The narrative of whoever the parties are should not be taken into consideration by the court in reaching its decision,” he said.

Azzopardi then retook the stand, saying he does not agree with the emphasis on juridicial interest in order to be considered a party in constitutional proceedings, adding that a wide interest is enough.

Azzopardi also referred to Gouder’s statement on Aquilina’s social media posts which described Muscat as a “corrupt Prime Minister”, saying that Muscat had never filed a libel case against Aquilina and that “there isn’t a sentence to quote because [Muscat] never let them put a case forward [against him].”

With all submissions over, the court continued to hear the rest of the case, and will make a decree on the matter in the coming sittings.

Muscat says that Magistrate Vella implied that he was being investigated

The main point on the agenda in the sitting was two requests by Muscat: for the proceedings to be heard urgently, and for an interim measure to effectively suspend Magistrate Vella from leading the inquiry until the case is decided.

Muscat himself here took to the witness stand to explain his stance.

Describing why he filed for an interim measure, Muscat said that he sees a situation where the moment that Magistrate Vella made a judgement concerning the conduct of her relatives – where she said that their remarks on the hospitals case are freedom of expression – then she took the side of her relatives and therefore against him.

“From that moment on, the case was prejudiced and my rights were being breached,” he said, further adding that he is seeking the interim measure in order for him to ensure that there isn’t further danger of his rights being breached.

He said that he had made multiple requests to testify and had not been notified that he was even part of the case.

Muscat said that there were a substantial number of reports in the media quoting investigators involved in the case anonymously and that a search had been carried out in his house.  But despite this, it was only after he filed his request for recusal that his request to testify was considered.

Muscat also referred to how Magistrate Vella described his request to testify as a request to “defend my position”, saying that “this is a sign that I am being accused of something which I am not officially informed of, thereby giving me the possibility of requesting an interim measure.”

Questioned by the State Advocate’s lawyer on whether the two relatives in question were in any way involved in the magisterial inquiry, Muscat said that his objection is not on the basis of the two individuals being involved in the inquiry, but on the basis of their relation to the magistrate which places a problem in her lap when giving an impression on whether justice is being seen to be done.

Muscat’s testimony ended, with Gouder re-taking the reins in order to argue his client’s points home.

On the urgency of the matter, Gouder referred to the Repubblika’s own request for the recusal of Magistrate Nadine Lia from hearing a criminal complaint against Pilatus Bank and how that was heard urgently because of its high-profile status as a case. 

Gouder argued that this case is similarly high profile and should therefore also be considered as an urgent one.

On the interim measure, Gouder said that there is no way for Muscat to safeguard his rights if this interim measure isn’t granted, because if the court rules that Magistrate Vella should recuse herself without the interim measure having been put in place then that throws into question whatever would have been done in the inquiry since the request was made.

“This court is the vaccine,” Gouder says: “I don’t first wait to get Covid and then take the vaccine after…  I take the vaccine to prevent me from getting Covid.”

‘Let us allow the institutions to work’, State Advocate says

State Advocate lawyer James D’Agostino meanwhile argued against both of Muscat’s applications.

He argued that all constitutional cases are deferred by only three to four weeks, which means that the court is already displaying a sense of urgency in this matter.

He also disagreed that this case should be afforded the same urgency as Repubblika’s Nadine Lia recusal case, because an urgent hearing was granted there since Repubblika had argued that the longer the case takes to be dealt with, the more chance there was of certain allegations which were being considered in the criminal complaint to become time-barred.

D’ Agostino said that this case is not the same because the investigations themselves are still ongoing.

Speaking on the request for an interim measure, D’ Agostino argued that an interim measure only applies when there is an imminent risk of one’s rights being breached. 

D’Agostino questioned how the court can decide on whether there is prima facie evidence to grant this request based on the evidence of just Muscat’s testimony.

“What comfort do I have on applications or decrees which were done, and what was alleged on Magistrate Vella’s family members?,” D’ Agostino questioned, saying that the testimony alone is not enough to justify an interim measure being granted.

He questioned what damage Muscat could face if the interim measure is not granted, noting that an inquiring magistrate’s role is to gather evidence, and cannot state whether someone is guilty or not of the matter at hand. 

The magistrate may recommend that there are no charges against the appellant, in which case his concerns stop there.  But if the magistrate does recommend charges, these will be heard and ultimately decided by a different magistrate, he explained.

If the outcome is negative for him, there is still a remedy before an impartial separate court in the form of the Criminal Appeals Court, he continued.

D’ Agostino said that the request for an interim measure is a serious one and that one must avoid creating a precedence which would allow anyone who is aggrieved at the refusal for the recusal of a magistrate to come before the constitutional court and seek such an interim measure.

Stopping the magistrate’s work would drag out the evidence gathering, and could also prejudice the rights of those – D’ Agostino mentions the former government ministers who are also part of this case – who are subject to the same inquiry because of the delay.

“Let us allow the institutions to work, and let the process take its course,” D’ Agostino said – ironically quoting the Labour government’s stock answer whenever it has been questioned about cases being handled by the courts.

“We know that the inquiring magistrate cannot determine guilt and therefore we do not need this interim measure,” D’ Agostino concluded.

Gouder countered by saying that nobody is saying that the inquiry should come to a halt, but that Muscat is saying that the inquiry should continue but under a different magistrate who can guarantee impartiality.

D’ Agostino had the final word though, and used it to question what proof was given to him to show that Muscat is even a suspect in the inquiry.  “Am I to rely on a Facebook post by Robert Aquilina to determine this?,” he questioned.

The case was deferred to Wednesday 5 July at 8:30am.

Judge Doreen Clarke is hearing the case.

Joseph Muscat is being represented by lawyer Charlon Gouder, while the State Advocate is being represented by James D’ Agostino.  Jason Azzopardi represented Repubblika and Robert Aquilina.

15:16: Judge Clarke defers the case to Wednesday 5 July at 8:30am.

15:14: Gouder makes his counter points to the State Advocate lawyer, saying that he is making it seem like if there is a human rights breach then that can simply be challenged somewhere else.

He says that nobody is saying that the inquiry should come to a halt, but that Muscat is saying that the inquiry should continue but under a different magistrate who can guarantee impartiality.

Gouder continues that he cannot understand the imposition of new criteria on when an interim measure can be issued.

D’ Agostino has the final word, questions what proof was given to him to show that Muscat is even a suspect in the inquiry.  “Am I to rely on a Facebook post by Robert Aquilina to determine this?,” he says.

Gouder tries to get another word in edgeways but is politely told that his time to speak is up.

15:03: True to her word, Madam Justice Clarke returns to the courtroom and the sitting resumes.

15:00: Madam Justice Clarke suspends the sitting "for a couple of minutes."

14:59: He questions what the damage Muscat could face is, noting that an inquiring magistrate’s role is to gather evidence, and cannot state whether someone is guilty or not of the matter at hand. 

The magistrate may recommend that there are no charges against the appellant, in which case his concerns stop there.  But if the magistrate does recommend charges, these will be heard and ultimately decided by a different magistrate.

If the outcome is negative for him, there is still a remedy before an impartial separate court in the form of the Criminal Appeals Court.

D’ Agostino says that the request for an interim measure is a serious one.  He says that one must avoid creating a precedence which would allow anyone who is aggrieved at the refusal for the recusal of a magistrate to come before the constitutional court and seek such an interim measure.

Stopping the magistrate’s work would drag out the evidence gathering, and could also prejudice the rights of those – D’ Agostino mentions the former government ministers who are also part of this case – who are subject to the same inquiry because of the delay.

He says that the request is not proportionate and that if any damages which Muscat says he may suffer are remediable then there is no need to put a stop to the case.

“Let us allow the institutions to work, and let the process take its course.  We know that the inquiring magistrate cannot determine guilt and therefore we do not need this interim measure,” D’ Agostino concludes.

14:52: Muscat meanwhile has, for the duration of this sitting save for when he has been testifying, sat alone behind his lawyer.  He occassionally taps Gouder on the shoulder to say a few words in his ear, but is largely emotionless as the case goes on.

14:48: On the interim measure, D’ Agostino argues that an interim measure only applies when there is an imminent risk of one’s rights being breached. 

He says that all the court has is Muscat’s testimony, adding that while this needs to be given its due recognition, this is still only one element particularly in the anomalous situation that the case is on an ongoing magisterial inquiry.

D’Agostino questions how the court can decide on whether there is prima facie evidence to grant this request based on anecdotal evidence. 

“What comfort do I have on applications or decrees which were done, and what was alleged on Magistrate Vella’s family members,” D’ Agostino says.

Despite there being a witness who testified under oath, there isn’t enough – not even on a prime facie level – to justify an interim measure being granted, he says, explainaing that this is because the allegation alone does not justify such a measure being granted.

On the damage Muscat may face, D’ Agostino says that then this must be “irreparable.” He notes that these are usually granted in cases of “life and limb” usually related to extradition or deportation – which is different to this case.

14:31 D’Agostino now stands to make his points and argues that all constitutional cases are deferred by only three to four weeks, which means that the court is already displaying a sense of urgency in this matter and should not be afforded the same urgency as Repubblika’s Nadine Lia case.

That case was given urgency when Repubblika’s lawyer Azzopardi had argued that the longer the case takes to be dealt with, the more chance there was of certain allegations which were being considered in the criminal complaint to become time-barred.

D’ Agostino said that this case is not the same because the investigations themselves are still ongoing.

On the matter of urgency, when the Degiorgio brothers started to open one constitutional case after another to delay the trial, they were given deferrals of three to four weeks which was considered to be urgent enough, D’ Agostino says.

This is also due to the fact that any negative effect which the appellant is fearing will not happen from one day to the next, he adds.

14:05: On the interim measure, Gouder comments again on the inquiring magistrate’s decision not to recuse herself but also to decide in favour of her family members on the premise of freedom of information over Muscat.

He says that there is no way for the appellant to safeguard his rights if this interim measure isn’t granted, , because if the court rules that Magistrate Vella should recuse herself without the interim measure having been put in place then that throws into question whatever would have been done in the inquiry since the request was made.

“This court is the vaccine,” Gouder says: “I don’t first wait to get Covid and then take the vaccine after…  I take the vaccine to prevent me from getting Covid.”

13:52: Judge Clarke moves on to hearing the application for the case with urgency and on the interim measure.

Azzopardi stands to note that if this matter is to be heard now, Repubblika – if it were to be admitted as a party to the case – would have what to say about the matter, but the court notes that the request to be a party of interest in the case does not stop what was scheduled to be heard today.

Gouder begins his argument on the urgency of the matter, referring to the request for recusal of Magistrate Nadine Lia in hearing a criminal complaint against Pilatus Bank and how that was heard urgently because of its status as a case. 

He says that this case is similarly high profile and should therefore also be considered as an urgent one.

13:44: Muscat’s testimony ends, and he steps off the witness stand.

Gouder and D’ Agostino now spar over Muscat’s initial application and Magistrate Vella’s decree which the former wishes to table in the case. 

Gouder says that the documents are essential for the case and are already online, but D’ Agostino says that no documents from any ongoing magisterial inquiry may be released as it risks “contaminating” the investigation.

D’ Agostino also argues that he doesn’t see the relevance of the request to the request for the interim measure.

Gouder states that it is his side which is tabling the request, and therefore it is his same side which can assess whether it is relevant or not.

The court rejects the request to table the documents as it deems the matter to be urgent, and in any case feels that the documents are not relevant.

13:40: D’Agostino now questions Muscat, asking whether – as far as he knows - the relatives which he is referring to have any form of involvement in the hospitals inquiry.

“What I know is that they expressed themselves about the material in this inquiry,” Muscat says.

He says that he has no problem in people having negative positions about him, and the point of the case is not that somebody said something negative about him, but that “one of them expressed a very clear position about the material which is being investigated, and the other person expressed his support to the group which originally requested the inquiry.”

13:36: He said that he had made multiple requests to testify and had not been notified that he was even part of the case.

Muscat said that there were a substantial number of reports in the media quoting investigators involved in the case anonymously and that a search had been carried out in his house.  But despite this, it was only after he filed his request for recusal that his request to testify was considered.

Muscat also referred to how Magistrate Vella described his request to testify as a request to “defend my position”, saying that “this is a sign that I am being accused of something which I am not officially informed of, thereby giving me the possibility of requesting an interim measure.”

13:29: Describing why he has filed for an interim measure, Muscat says that he sees a situation where the moment that Magistrate Vella made a judgement concerning the conduct of her relatives – where she said that their remarks are freedom of expression – then she took the side of her relatives and therefore against him.

“From that moment on, the case was prejudiced and my rights were being breached,” he said, further adding that he is seeking the interim measure in order for him to ensure that there isn’t further danger of his rights being breached.

13:20: Judge Clarke now moves on to hearing the submissions on the request for an interim measure for Magistrate Gabriella Vella to stop her work on the hospitals inquiry until this constitutional case is decided.

Gouder says that Muscat would like to testify on this measure.  The former Prime Minister takes the witness stand.

13:18: Azzopardi retakes the stand, saying he does not agree with the emphasis on juridicial interest in order to be considered a party in constitutional proceedings, adding that a wide interest is enough.

He said that Muscat’s defence team is pressing the “self-destruct” button by quoting a sentence from cases instituted by Simon Busuttil and Repubblika.

Azzopardi refers to Gouder’s statement on Aquilina’s social media posts which described Muscat as a “corrupt Prime Minister”, saying that Muscat had never filed a libel case against Aquilina and that “there isn’t a sentence to quote because [Muscat] never let them put a case forward [against him].”

13:11: In his submissions, State Advocate lawyer James D’Agostino said that while he agreed that the requests of both Repubblika and Aquilina to be parties in the case should be refused, he must distance himself from the “narrative” that Gouder had presented.

“The narrative of whoever the parties are should not be taken into consideration by the court in reaching its decision,” he said.

13:08: Gouder goes on the offensive, saying that Repubblika can under no circumstances qualify to intervene in the case, and only wants to be admitted into it for one reason: to confront Muscat.

“Do you want to know why they want to intervene?,” Gouder asked.

“I think Robert Aquilina gave his reasons on Facebook this morning: because they want to confront Joseph Muscat.  Addio statute, addio rule of law – we only cite rule of law when it suits us,” he says.

He referred to a part of Aquilina’s post where he referred to Muscat as a “corrupt Prime Minister” and challenged anyone to find one court sentence which proves this assert.

“They couldn’t face him in a political arena, so now they want to face him here in these proceedings,” Gouder said.

He continued by saying that Aquilina had written that he was intervening in the case so that the justice system is not reduced to a farce, an assertion which Gouder implied was a show of a lack of faith in the court.

“It is not because they have a legitimate interest in this case, or because it will impact them.  They want to intervene – and here is your responsibility, Madam Justice – so that they can challenge Joseph Muscat face to face in this courtroom,” Gouder said.

13:00: Gouder now stands to make his submissions, on behalf of Muscat. 

He says that Azzopardi did not refer to a Constitutional decision on Simon Busuttil which explained what qualified as the adequate interest in order to be considered a party in a case. Gouder says that the court had determined that the interest in such a case has to be juridicial

He said that Repubblika’s and Robert Aquilina’s interest in the case is not juridicial, but their interest is the outcome of this case – which is not something which qualifies as having juridicial interest.

Gouder referred to one of the points in Repubblika’s submissions, saying that the NGO wanted to be considered a party in the case because Muscat had mentioned them in his application.  “God forbid” anyone mentioned in a court application had to be considered a party to it as each case would take forever, Gouder said.

12:40:  Jason Azzopardi, speaking for Repubblika, is up first to explain Repubblika’s application to be considered a party in the case.

He states that Repubblika is the only association in Malta which, by statute, is bound to promote the rule of law and all that brings with it, and therefore has the interest to be a party in the case.

He said that there is an identical presence which the court should consider, and referred to the opening of a constitutional case by former minister Konrad Mizzi in this same case back in 2019. Azzopardi said that in this case, Judge Joseph Zammit McKeon – who was hearing the case – accepted the requests of both former PN leader Simon Busuttil and Repubblika to be parties in the case.

12:25: Judge Clarke states that the court will first hear Repubblika’s application in order to be admitted as a third party to the case, giving the opportunity for each party: Repubblika, Muscat and the State Advocate to make their respective submissions on the application.

12:20: Judge Doreen Clarke is hearing the case.  Muscat, who is present in the courtroom, is being represented by lawyer Charlon Gouder, while Repubblika is being represented by lawyer Jason Azzopardi.  The State Advocate is represented by lawyer James D' Agostino.

A number of members of Repubblika, including President Robert Aquilina and Vicki-Ann Cremona, are also present in the courtroom.