Request for appeal judge's abstention dismissed

The Constitutional Court yesterday dismissed a request for the abstention of Mr Justice Anton Depasquale from hearing the appeal from a constitutional application filed by two judges charged with bribery.

Mr Justice Depasquale, Mr Justice Albert J. Magri and Mr Justice Geoffrey Valenzia dismissed the request filed by the Attorney General and ruled that the request was based on grounds which were not contemplated at law.

The Constitutional Court is hearing the appeal filed by Judge Noel Arrigo and Judge Patrick Vella from a Civil Court judgement which dismissed a constitutional reference made by the Magistrates' Court in the bribery case against them.

The Civil Court had concluded that the prime minister's remarks at a press conference and the ensuing press statement released by the government did not breach their rights.

The judges have been charged with two counts of bribery and one of revealing official secrets in relation to a judgement handed down by the Court of Criminal Appeal against Mario Camilleri on July 5, 2002.

At the last sitting of the appeal case, the Attorney General, Dr Anthony Borg Barthet challenged Mr Justice Depasquale from hearing and deciding the appeal because it appeared that Dr Edgar Depasquale was assisting the counsel to the two former judges in this case.

As Dr Depasquale was Mr Justice Depasquale's son, the judge could not continue to hear the case on the basis of the provisions of the law regulating court procedure.

Dr Arrigo had declared he had never engaged the services of Dr Depasquale in this case, nor had he ever communicated with the lawyer.

The former chief justice added that his only lawyers in the constitutional proceedings were Dr George Abela and Dr Joseph Giglio who had assisted him in the criminal proceedings before the Magistrates' Court.

Dr Depasquale had testified before the Constitutional Court that he was specialising in the law governing human rights, and that he had a professional arrangement with Dr Abela's office.

The lawyer added that he had followed the judges' case from its commencement and had discussed the case with Dr Abela.

Dr Depasquale added that he had advised Dr Abela on the issues of this case but that he had never been approached by Dr Arrigo or by the latter's lawyers.

The Constitutional Court noted that the law regulating procedure provided that a judge could be challenged to abstain from hearing a case when the lawyer or legal procurator pleading the case was the son or daughter of the judge or the judge's spouse.

The Attorney General requested that Mr Justice Depasquale abstain from hearing the case on the basis that Dr Depasquale's active participation in the case qualified as pleadings on the part of legal counsel.

The Constitutional Court pointed out that this was the first time that this basis for a challenge to a judge was ever being considered by the courts, even though both the Constitutional Court and the Civil Court had had occasion to examine other grounds for a challenge to a judge.

Such challenges were, in the majority of cases, upheld out of respect to the principle of the entitlement of the individual to a fair trial by an impartial and independent court.

Furthermore, justice was not only to be done but had to be seen to be done.

However, a judge could not abstain from hearing a case except in the various instances listed by law.

The three judges comprising the Constitutional Court added that the challenge posed to Mr Justice Depasquale by the Attorney General was not, however, based upon a reason contemplated by law.

The code of civil procedure clearly provided that a judge could only be challenged or abstain when the lawyer or legal procurator pleading before him was related to him as stipulated by law.

No further interpretation was required to this provision of the law, and if the Attorney General's challenge were to be upheld, this would not be a correct interpretation.

On the contrary, the court would be adding grounds for the abstention of or challenge to a judge.

The Constitutional Court added that the provision of law stipulating that a judge could be challenged if his son, daughter or spouse was pleading a case before him had been incorporated in the White Paper entitled "Justice within a reasonable time" following a report submitted by a number of local jurists.

The White Paper had been published prior to the amendments to the Code of Civil Procedure and no modifications on this provision had ever been suggested prior to the law being enacted.

The then Justice Minister moving the amendments had only stated that this amendment was being enacted so as to avoid any suspicions that could arise if the son of a judge was defending a case before the judge.

The court proceeded to dismiss the Attorney General's challenge.

Dr Abela and Dr Giglio were counsel to Judge Arrigo while Dr Toni Abela, Dr Michael Sciriha and Dr George Cutajar were counsel to Judge Vella.

Attorney General Anthony Borg Barthet also appeared as counsel to the police commissioner.