An NGO has urged the Chief Justice to abstain from a case in which it is contesting a decision to appoint new members to the bench. 

Civil society group Repubblika is arguing 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 keen 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.

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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.

Why the legal challenge to the Chief Justice?

On Monday afternoon, Repubblika’s lawyers – Jason Azzopardi and Simon Busuttil – put forward a legal move that lent an unexpected twist to the proceedings.

“Before we start, I wish to address your honour. Will you abstain?” asked Dr Azzopardi, directing his question at Chief Justice Joseph Azzopardi.

“Frankly I don’t see any reason for this,” came the reply, “Unless of course you explain further.”

Starting off by stressing that the challenge in no way stemmed from any doubt about the Chief Justice's integrity, Dr Azzopardi went on to explain that in terms of the Constitution it was the Chief Justice who made recommendations to the Prime Minister about the suitability of prospective candidates to the bench.

Not only did the Chief Justice evaluate candidates, but it was also his sole prerogative to assign duties to newly appointed Magistrates and Judges, Dr Azzopardi continued.

Refuting the challenge would give rise to “judicial schizophrenia,” since the Chief Justice had, on the one hand, recommended the appointments and assigned duties to the appointees, while on the other hand, he was now being asked to nullify those appointments, Dr Azzopardi argued.

The Chief Justice had already expressed himself on the issue by assigning duties to the three newly appointed magistrates and judges, in spite of Repubblika’s call for an interim measure by means of a judicial protest and subsequently by a court case instituted “hours before” the judicial members were sworn in, Dr Azzopardi continued.

Four reasons given

The grounds for the challenge were fourfold, said Dr Azzopardi. No-one should be a judge in one’s own cause (nemo iudex in causa propria). Secondly, judges’ code of ethics contemplated abstention in case of “a manifest danger or prejudice to fair hearing.” Thirdly, the Constitution declared that every party had a right to appear before an impartial judge. Furthermore, even if there were no statutory grounds for abstaining, there have been cases where a judge or magistrate abstained since “justice must not only be done but must be seen to be done.”

Attorney General Peter Grech rebutted these arguments since “the reasons given were not relevant to the case.”

Judicial appointments were effected through the intervention of the Prime Minister, Dr Grech said, pointing out that the Chief Justice only made recommendations as to the suitability or otherwise of prospective candidates.

When assigning duties, the Chief Justice did not impinge upon the merits of the case and did not in any way express himself thereupon, said Dr Grech, stressing that there was no issue which could “legitimately” be raised under the sole dispositions regulating such challenge.

After hearing arguments by both parties, Chief Justice Azzopardi, flanked by Mr Justices Giannino Caruana Demajo and Noel Cuschieri, adjourned the case to next week for a decision on the challenge.

Should the challenge be rejected, the Court, as currently composed, would proceed to hear the appeal.

Deputy AG Victoria Buttigieg also assisted the respondents.

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