The State Advocate was exerting “undue pressure” when requesting a judge to revoke his decision to abstain from hearing the Opposition’s case concerning the hospitals' privatisation deal, and such an attitude was “abhorrent”, the PN's lawyers are claiming. 

That was the line of argument pushed by the Opposition in its reply to an application filed on Tuesday by the State Advocate who has called upon Mr Justice Giovanni Grixti to revoke a decree through which he abstained from presiding over the case filed by PN leader Bernard Grech and MP Adrian Delia.

That lawsuit, following up on the appeal judgment confirming the annulment of the fraudulent Vitals privatisation deal, is aimed at getting the State Advocate to recover funds swindled out of the public coffers in that concession which the court held to be vitiated by collusion. 

On Monday, the judge was expected to deliver a decree on a request by the government and the cabinet to intervene in the case. 

But instead, shortly before the early morning sitting, Mr Justice Grixti delivered a decree saying he was abstaining because his partner - lawyer Yanika Bugeja - had been appointed to act as curator representing Steward Assets Management Malta on the deed of rescission of ground rent on the lands concerning the public hospitals. 

The judge came to know about that appointment on January 18, a day ahead of the signing of the contract of rescission. 

And since Steward was among the people named by the Opposition to be sued for the recovery of the funds, that situation gave rise to a conflict of interest that meant that the judge “did not feel at all serene” in continuing to preside over the case. 

However, that recusal was challenged the next day by the State Advocate who argued that the judge had failed to follow correct legal procedure.

On Thursday, the Opposition rebutted the State Advocate’s arguments through a reply filed in the records of the case. 

Grixti correct in stepping back, parties should not exert moral pressure: PN

A decision to abstain or for recusal could not be appealed, nor could it be challenged by any of the parties. 

Mr Justice Grixti was “correct” in stepping back when his conscience told him that there was a conflict and all the parties, as well as their lawyers, were to respect that decision, rather than exert “moral pressure” on the judge, the Opposition said in its reply.

This was in line with the principle that justice must not only done but must be seen to be done. The State Advocate could not expect to pressure the judge when there was no change in circumstances giving rise to the conflict perceived by the judge, it added.

And that was even more so when it was Judge Grixti himself who raised the issue of his own free will. 

Such “undue pressure” was abhorrent and deserved reprimand because it amounted to tampering with the judge’s freedom in deciding to abstain.

The irony of it all was that when during the first hearing the Opposition’s lawyer had flagged the judge’s familial ties to a medical professor who had been involved in the due diligence process greenlighting Vitals as the original concessionaire, the State Advocate and the Cabinet representatives claimed that the Opposition was exerting pressure on the court. 

Moreover, it was not true that the judge had not followed proper procedure. 

According to the case minute dated January 22, the recusal decree was delivered in open court. 

The judge may deliver such a decree in writing and in that case, his declaration is to be inserted in the case register before the date of hearing and the parties must be served notice. 

In this case, the parties were informed of that decision earlier via email.

'Request tampers with judge’s freedom to make decisions in best interests of justice'

One cannot understand why the State Advocate should object to the judge’s decision taken freely and according to law, argued the Opposition. 

The State Advocate was “trying to force [the Judge] to hear and decide a case where, to his knowledge, the judge feels he cannot deliver justice” because of the conflict triggered by his partner’s appointment as curator. 

The State Advocate’s request was frivolous, vexatious, abusive and unlawful, tampering with the judge’s freedom to make decisions in the best interests of justice, it added.

It also demonstrated “blatant disrespect” towards the sitting judge by subjecting his integrity to such “pathetic discussion,” said the Opposition, wrapping up its reply.

Lawyers Edward DeBono and Nicholas DeBono signed the reply.