In the case The King v. Sussex Justices, dating back to 1923, Lord Hewart, then Lord Chief Justice of England, commented that ensuring justice is not only done but manifestly and undoubtedly seen to be done is not merely of some importance but of fundamental importance.
If you deem the presiding member of the judiciary to be independent and impartial you are likely to accept that justice is being done. If there are doubts on an adjudicator’s credibility and trustworthiness, suspicions will arise about an improper interference with the course of justice, again Lord Hewart’s words.
More than six years ago, eminent jurist Giovanni Bonello penned an article on The Sunday Times of Malta titled ‘Do we need to beg judges and magistrates to stand down?’
The Code of Civil Procedure lists the circumstances when a member of the judiciary should not preside over a civil or criminal case, all instances of presumed bias, partiality or lack of independence, he noted.
However, to him, that “old list in that old code” is quite irrelevant. “Overriding that list is the constitutional imperative that all people in Malta must receive a fair hearing by an independent and impartial tribunal. Any circumstance that puts their independence or impartiality in doubt, whether listed or not, compels the judge to drop the case like a scalding tuber,” the former European Court of Human Rights judge wrote.
He recalled that, in a case dating back many years about a land assignment scheme, the constitutional court had, for the first time, established the principle that the judiciary must step down not only in the cases listed by the Code of Procedure but whenever their fairness, independence and impartiality seem open to reasonable doubt.
The case instituted by Repubblika demanding police action against Pilatus Bank officials should, therefore, never have reached the point it has. Rather than a challenge to the police commissioner and the attorney general to act on the recommendations of an inquiring magistrate, the case has become an embarrassing tussle between a member of the judiciary and a civil society movement.
The NGO is insisting the presiding magistrate recuses herself from the case because she is related to a lawyer who was close to elements linked to Pilatus Bank.
In addition, Repubblika says, when still a lawyer, the magistrate had publicly defended former prime minister Joseph Muscat and his administration. Hence, it argues, it can never be assured of a fair hearing.
As the magistrate would not budge, the NGO has now filed a constitutional application.
There have been at least three occasions when the same magistrate accepted to recuse herself from hearing cases that came before her.
Not because of legal constraints but so that justice would be seen to be done, to ensure the “utmost serenity” and “in the best interests of justice”.
This time, however, she opted for a different approach, dismissing Repubblika’s recusal requests by saying her father-in-law never represented the five Pilatus officials the case is about.
In providing for a member of the judiciary to be challenged or to abstain from sitting in a case, the law does speak of instances where the magistrate or judge “or his spouse” – not a father-in-law – are directly or indirectly interested in the event of the suit. The spirit, however, is guaranteeing an impartial hearing.
How often do we accuse the law of being an ass!
Yet, there are times when it is depicted as such by those who interpret it, especially its spirit.