The Chief Justice has abstained from presiding over an appeal concerning the selection of the judge presiding over criminal proceedings against Yorgen Fenech, citing "prudence".
The decision was delivered on Monday in constitutional proceedings concerning a bid by Fenech’s lawyers to challenge the selection of Madam Justice Edwina Grima as the judge presiding over the murder case.
They argued that the fact that the Attorney General was “directly or indirectly” involved in the selection process of the judge to preside over the criminal proceedings against Fenech, was a “grave injustice and against every notion of a fair hearing".
Moreover, having Madam Justice Grima presiding over the murder trial meant that she would not be able to preside over any future appeal, thus depriving that court of the second instance of “the most experienced member”.
That too amounted to a breach of Fenech’s right to a fair hearing, the lawyers argued.
However, their arguments were rejected by the First Hall, Civil Court in its constitutional jurisdiction last December.
Madam Justice Anna Felice, presiding over the proceedings, declared that the court was “perplexed” by the applicant’s dual argument which “lacked all sense of logic.”
Her decision prompted an appeal to the Constitutional Court.
The issue landed before Chief Justice Mark Chetcuti together with Mr Justices Giannino Caruana Demajo and Anthony Ellul.
When the case came up for hearing in January, Fenech’s lawyers requested the recusal of the Chief Justice, arguing that the recommendation leading to the choice of Judge Grima had been issued under the signature of the Chief Justice’s office.
The lawyers said that their objection was linked to the “objective independence and impartiality of the Chief Justice,” and it was for that reason that they were requesting his recusal.
The case was put off for a decision on this matter.
On Monday, the Court decreed that it was evident from the case documents that the Chief Justice had been involved in the appointment of Judge Grima to preside over Fenech’s criminal proceedings.
The nomination was made by the President of the Republic, recommended by the Chief Justice and then forwarded by the Attorney General to the Justice Minister for approval.
The President of Malta signed his approval on August 23, 2021.
Now that selection was being challenged before the Constitutional Court and in the light of such circumstances, it was “prudent” for the Chief Justice not to preside over the appeal.
“Of course, this decision was not to be understood in any way as impinging upon the merits of the appeal,” concluded the court.
Lawyers Gianluca Caruana Curran, Charles Mercieca and Marion Camilleri are assisting Fenech.