Chief Justice Joseph Azzopardi has refused to abstain from a case relating to appointments new members to the bench, ruling that there were no legal grounds for his recusal.

In a decree delivered on Monday morning, the Appeal’s Court, presided over by Chief Justice Azzopardi and Judges Giannino Caruana Demajo and Noel Cuschieri ruled that there was no “objective basis” for Repubblika’s request for recusal to be accepted.

Civil society group Repubblika last week argued that it would be "judicial schizophrenia" for the Chief Justice to preside over the appeal, given that the country's top judge is also responsible for making recommendations about potential judges and magistrates to the Prime Minister. 

The NGO is attempting to nullify judicial appointments until the government implements recommendations by the Venice Commission on the rule of law, with Repubblika saying that no new members should have been added to the bench until a revised system of appointments is in place.

But the Appeal’s Court ruled Monday that the fact that Chief Justice Azzopardi presides over the committee which makes recommendations to the Prime Minister about potential judges and magistrates did not mean that he (the Chief Justice) had expressed himself or ruled on the merits of the case in question, as prescribed by law laying down the grounds for recusal.

Moreover, it said the Prime Minister had the final say and the prerogative of whether to accept the committee’s recommendations was entirely his.

The present case, the court said, was about the present system for the appointment of the judiciary, and specifically about what the NGO describes as the “Prime Minister’s absolute discretion on the appointment of members of the judiciary”.

It said that Chief Justice Azzopardi never ruled about the system per se but presided over a committee which looked into eligibility and merit for someone to occupy such a role so his role does not influence in any way the merits of the present case over which he was being asked to abstain.

With regard to assigning duties to newly appointed Magistrates and Judges, the court said this happened after they are appointment and it was well within his remit to assign such duties.

The court therefore denied the request.

Road to the appeal

In a judgment handed down in May, the First Hall, Civil Court in its constitutional jurisdiction had declared that Repubblika did not have juridical interest in the issue under Maltese law, but postponed a decision about a reference to the European Court, saying it would rule on that matter at a later stage.

Meanwhile, the Court had upheld both parties’ request to appeal, declaring that such a “sensitive” issue merited direction from a superior Court, namely the Constitutional Court.

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