The law which regulates how a member of the judiciary should decide whether to abstain from hearing a case is anti-constitutional and breaches a person’s right to a fair trial, according to a group of lawyers.

They insist that the mere fact that it is the same judge or magistrate who must make the decision goes against one of the cardinal rules of natural justice that no one should act as a judge in a case in which they have a personal (vested) interest or conflict.

Lawyers Franco Debono, Matthew Xuereb, Jason Azzopardi and José Herrera were making further submissions in the case they filed before the First Hall, Civil Court in its constitutional jurisdiction on behalf of their client, Adrian Muscat.

Muscat is a director of a waste collection company who was convicted of submitting false documents in a public tender and who wants his conviction quashed because of a magistrate’s early comments in his case. He is claiming that his right to a fair hearing was breached when the presiding magistrate expressed herself before passing judgment.

Muscat was handed a 16-month jail term suspended for 18 months in criminal proceedings where he was charged with fraud and use of false documents. His father, Marius Muscat, faced separate charges in relation to the bid for a €335,296 public tender issued by the Attard local council for waste collection services over a four-year term.

Criminal investigations had been triggered after a chance conversation between the secretaries of the Attard and Lija local councils when reference was made to a recommendation letter which the Lija council secretary denied ever issuing.

the mere fact that it is the same judge or magistrate who must make the decision goes against one of the cardinal rules of natural justice that no one should act as a judge in a case in which they have a personal (vested) interest or conflict

Both father and son were ultimately acquitted of fraud but convicted of using a false document and were separately handed suspended sentences, later confirmed on appeal.

Magistrate Donatella Frendo Dimech. Photo: Jonathan Borg

Adrian Muscat recalled an episode where, he said, Magistrate Donatella Frendo Dimech had expressed herself in open court before the prosecution had even wrapped up its evidence stage. She had then “invited” him to get his position in order, suggesting that it would be better for him to register an early admission to all the charges, he claimed.

Muscat’s lawyer, Matthew Brincat, had sought the magistrate’s recusal but it was refused after the same magistrate had approached him in the corridors of the law courts suggesting that he ought to withdraw his request for her recusal.

In the case filed against the state advocate, the attorney general and the justice minister, Muscat is attacking the provision of the law that allows judges and magistrates to decide themselves on a request for their recusal.

The lawyers argued that this breaches the fundamental principles of natural justice which prevents against a member of the judiciary deciding a case in which they may have a conflict. This, they said, is in breach of the provision safeguarding a person’s right to a fair trial.

Muscat called on the court to declare that this was anti-constitutional and that his fundamental rights were breached and also to grant him adequate remedies, including annulment of the criminal proceedings and reversal of his conviction.