A magistrate’s refusal to recuse herself from a case is – in itself – not grounds for resignation since it does not constitute misconduct, according to a legal professor.
However, a constitutional expert believes the court’s implication that she did not act impartially could lead to resignation or even impeachment given that it implied a breach of oath.
On Wednesday, the First Hall of the Civil Court, in its constitutional jurisdiction, removed Magistrate Nadine Lia from a court case dealing with top Pilatus Bank officials. The decision sparked calls by NGO Repubblika for her resignation.
Lia, who was sworn in as a magistrate in 2019, was presiding over a case that Repubblika filed against the police commissioner and the attorney general for their failure to press charges against senior Pilatus Bank officials. The NGO says an inquiry into the bank had advised the top law enforcers to charge bank directors well over a year ago.
Repubblika had then sought Lia’s recusal because her father-in-law, lawyer Pawlu Lia, represents key figures who have been embroiled in the Pilatus Bank scandal: Pawlu Lia is the personal lawyer of former prime minister Joseph Muscat as well as the Labour Party’s legal counsel, among others. He was also the lawyer who set the terms of reference for the Egrant inquiry, which prominently featured Pilatus Bank.
Repubblika argued that the magistrate’s familial ties presented a clear conflict of interest in this case, as anything that damaged Pilatus Bank or exposed its workings risked causing harm to her father-in-law’s clients. However, the magistrate turned down repeated requests to recuse, prompting the NGO to file constitutional proceedings.
On Wednesday, the First Hall ruled that the case should be assigned to a different magistrate, noting that Lia’s refusal to step aside in the case differed from her behaviour on previous occasions. Citing British case law, the court made it clear that “in any case there is real ground for doubt, that doubt should be resolved in favour of recusal”.
A matter of procedure
According to Kevin Aquilina, professor of law at the University of Malta, this in itself is no cause for resignation since it is normal procedure.
The former dean of the faculty said: “The rule of thumb is that magistrates and judges do not abstain from hearing a case to ensure that the parties do not pick and choose who hears their case. But in circumstances where there is a real reason, the magistrate can abstain. If the magistrate decides not to, this can be challenged through constitutional procedures.”
One recent case happened in 2018 when a judge upheld a request by former Opposition leader Simon Busuttil that a case involving the Panama Papers is not heard by Judge Antonio Mizzi because of the possibility of a conflict of interest due to the fact that the judge’s wife, Marlene Mizzi, was then a Labour MEP.
Judge Mizzi had been due to hear appeals filed by then Prime Minister Joseph Muscat, his chief of staff Keith Schembri and Tourism Minister Konrad Mizzi, together with businessmen Brian Tonna, Karl Cini, Malcolm Scerri and Adrian Hillman against a magistrate’s decision to green light an inquiry in their regard.
A possible case for impeachment
But in the case of Lia, the judge presiding over the First Hall of the Civil Court, went a step further when he delved into a dispute between the NGO and magistrate over her alleged mis-stating of proceedings in one hearing.
Lia had stated that Repubblika representatives failed to show up for a September sitting and also said she never turned down a request to file a note in court proceedings. Repubblika had vehemently denied both claims and filed an ethics complaint against the magistrate before the Commission for the Administration of Justice, alleging she had mis-stated proceedings. Media reports of the sitting appeared to lend credence to the NGO’s version of events.
In its judgement on Wednesday, the court, presided by Judge Ian Spiteri Bailey, said that this dispute also raised “serious doubts” about the serenity of proceedings and further bolstered Repubblika’s argument for the case to be reassigned to a different magistrate.
This is where there could be grounds for resignation, or impeachment even, according to a constitutional expert who preferred not to comment on the record as the case may still be appealed.
The expert argued that the magistrate breached her own oath of office, in which she promised to exercise her functions with impartiality.
“The constitutional court determined that Magistrate Lia exercised her powers in a partial manner,” the expert said.
“In substance, the constitutional court established that Magistrate Lia violated her oath of office. That is not only a matter of resignation. It is a matter of impeachment,” the expert said.
A retired judge who also preferred not to comment on the record as the case was still subject to appeal, added that such a case should not lead to an automatic resignation.
“Of course, one can ask for a resignation politically but there are no legal grounds. Ethically, it’s a different matter. Having said that, we need to be careful not to put undue pressure on magistrates,” he cautioned.
What does it take to be removed from the bench?
The judiciary enjoys security of tenure. There are only two ways by which their functions are terminated – by resignation or impeachment.
According to the constitution, a member of the judiciary can only be impeached after a parliamentary motion is backed by two-thirds of MPs. When an impeachment motion is presented, it has to first be discussed by the Commission for the Administration of Justice to decide whether there is a prima facie case of misbehaviour. If it agrees, the motion can proceed to be decided in Parliament, otherwise the motion will fall.
So far, there has never been a successful case in Malta. The current system, which leaves the fate of a member of the judiciary up to politicians, has been criticised. Over the years, there have been proposals to introduce a system of three warnings before dismissal or removing parliament’s power and allowing the commission to remove members of the judiciary in the case of misconduct.