A mistaken practice adopted by the courts’ administration and followed by the Attorney General had unnecessarily raised doubts about the objective impartiality of the judge chosen to preside over Yorgen Fenech’s trial, the Constitutional Court said on Thursday.

The court went on to criticise the “go with the flow” attitude that had triggered Fenech’s claims.

Judgment was delivered in an appeal filed by Fenech’s lawyers from a decision by the First Hall, Civil Court in its constitutional jurisdiction which had rejected their bid to remove Madam Justice Edwina Grima from presiding over proceedings where the former businessman stands accused of being an accomplice in the murder of Daphne Caruana Galizia.

Last December, the first court had described Fenech’s action as “solely the umpteenth attempt to uselessly prolong proceedings.”

Fenech had filed the case after Madam Justice Grima rejected his application to abstain from the upcoming trial.

His lawyers argued that the fact that the Attorney General was “directly or indirectly” involved in the selection of the judge was “a grave injustice and against every notion of fair hearing.”

After the judge first assigned Fenech’s trial had abstained, the Chief Justice had selected Madam Justice Grima for the role, issuing a recommendation to that effect.

That recommendation was forwarded by the courts’ administration to the AG as well as to the justice minister before the relative signed documentation was sent to the President for final endorsement.

The AG’s involvement in the process triggered doubts by Fenech’s defence about the objective impartiality of the chosen judge, given that the AG was also the prosecutor in the criminal proceedings against Fenech.

The Constitutional Court on Thursday put the blame on a wrong practice “stemming from a mentality -more or less prevalent within courts administration- of ‘continuing to do this because that’s what we’ve always done.’”

Unfortunately, such an attitude was backed by the AG who should have immediately sent the documents back to the court registry official along with a note stating that the AG had no reason to intervene in the judge’s selection, the court said.

Instead of doing that, the AG had simply gone along with that practice without checking whether it had any legal basis.

“It’s that same mentality that creates unnecessary formalities and inertia which are among the primary causes of the system’s inefficiency,” observed the court.

And to eliminate all doubt in future, the judges presiding over Fenech’s appeal expressly stated that the first court had also been wrong in stating that the AG’s signature was necessary in the selection process. So was the court registrar who when testifying had stated that unless all signatures were in place the relative paperwork could not be sent to the President of Malta.

The AG was also wrong in putting a signature on the Chief Justice’s recommendation.

No role for the AG in assignment of judge

The crux of the issue was whether that mistaken practice had effectively assigned any powers to the AG which had not been granted by law.

The judges declared that the selection of the judge was complete once the Chief Justice issued the signed recommendation in terms of article 101A(3) of the Constitution which said that those powers “must” be exercised by the Chief Justice.

Although termed a “recommendation” it was a binding decision that neither the AG nor the president could change. And the AG had no role, direct or indirect, in that decision.

This meant that the so-called ‘legal vetting’ by the AG in the selection process was nothing but “an empty, useless, and irrelevant exercise” since the AG could not alter anything.

All the AG did was to give rise to this “unnecessary episode” simply by relying on such a practice without first checking what the law says, stated the court.

Since the selection of Madam Justice Grima was in the hands of the Chief Justice and no one else and that choice was not influenced in any manner, there was no reason to doubt the objective impartiality of the judge presiding over criminal proceedings against Fenech, concluded the court.

The AG and the State Advocate were to shoulder one-fourth of the costs since their plea of nullity of the appeal was rejected.

The Constitutional Court was presided by Acting President Giannino Caruana Demajo, together with Mr Justices Tonio Mallia and Anthony Ellul.

Lawyers Gianluca Caruana Curran, Charles Mercieca and Marion Camilleri are assisting Fenech.