The State Advocate is seeking leave to appeal a judge’s decision removing Magistrate Nadine Lia from challenge proceedings filed by Repubblika, which is calling for criminal charges to be issued against former top officials at Pilatus Bank.
The move came about on Friday, two days after Mr Justice Ian Spiteri Bailey, presiding over the First Hall, Civil Court, upheld Repubblika’s request for an interim measure, effectively suspending the challenge proceedings and ordering that case to be assigned to another magistrate.
The civil society organisation argued that magistrate Lia had a clear conflict of interest since her father-in-law, Pawlu Lia, happened to be the lawyer who assisted former prime minister Joseph Muscat and his wife as well as former OPM chief of staff Keith Schembri.
Those persons had an interest in the Egrant inquiry, whose terms of reference were set by the magistrate’s father-in-law in 2017 and the now-shuttered Pilatus Bank featured prominently in that inquiry, Repubblika claimed.
So, after multiple requests for Magistrate Lia to abstain were turned down, Repubblika took its grievances before the constitutional courts claiming that such refusal breached its right to a fair hearing in the challenge proceedings.
Following submissions by Repubblika’s lawyer, Jason Azzopardi and lawyers representing the State Advocate earlier in October, Mr Justice Spiteri Bailey upheld the applicant’s request for an interim measure.
The court went further, stating that the challenge was to be assigned to another magistrate.
Now, the State Advocate is seeking to appeal that decision claiming that it wishes to do so not because it did not go in its favour, but because it triggered legal consequences that were best reviewed by the Constitutional Court before the case proceeded on the merits.
For this reason, the State Advocate filed an urgent application on Friday seeking permission from Mr Justice Spiteri Bailey to appeal.
There were various pressing reasons to do so, the State lawyers said.
This was a “sensitive” issue which merited a definitive decision by the Constitutional Court.
The decision meant that Repubblika was in effect granted their request to have Magistrate Lia removed from the challenge case even before the first court determined whether the organisation’s rights had been breached.
Judge Spiteri Bailey’s decision gave rise to a “fait accompli” and did not follow the general rule that an interim measure is granted only in exceptional cases.
The court did not appear to have considered whether Repubblika potentially faced an irremediable prejudice if the challenge continued to be heard by Magistrate Lia.
Such a pronouncement could have a bearing on recusal cases in general.
No evidence had been produced so far to show that the magistrate’s father-in-law came anywhere close to those challenge proceedings.
Moreover, Repubblika had not requested the judge to order the case to be assigned to another magistrate but only to suspend the proceedings until their breach of rights claim was decided on the merits.
In light of such considerations, the State Advocate sought permission to appeal.
On Friday, Mr Justice Spiteri Bailey granted that permission but following another urgent application by Repubblika, filed this afternoon, the judge revoked his decision after the organisation’s lawyer argued that such a decision was to be delivered in open court.
Consequently, the judge scheduled a hearing next week for the issue to be determined once the parties have made their submissions in open court.
Lawyers James D’Agostino and Isaac Zammit signed the application on behalf of the State Advocate. Lawyer Jason Azzopardi is assisting Repubblika.