The Constitutional Court has partly upheld an appeal by the State Advocate to reverse a decision that had stopped Magistrate Nadine Lia from continuing to hear challenge proceedings filed by the civil society group Repubblika.
The NGO is challenging the police commissioner to prosecute former top officials of Pilatus Bank officials, in line with directions given by the magistrate who conducted an inquiry into suspected financial crimes at the now-shuttered bank.
But Repubblika is also arguing that its fundamental right to a fair hearing would be breached if the challenge proceedings continue to be heard by Magistrate Nadine Lia, claiming that she has a conflict of interest. Her father-in-law, Pawlu Lia, was the lawyer of former prime minister Joseph Muscat and his chief of staff, Keith Schembri.
Pawlu Lia was the lawyer who set out the terms of reference for the Egrant inquiry wherein Pilatus bank featured prominently, argued Repubblika.
On October 19, the First Hall, Civil Court in its constitutional jurisdiction, presided over by Mr Justice Ian Spiteri Bailey, upheld Repubblika’s request for an interim measure, ordering that the challenge case be assigned to a different magistrate.
The State Advocate filed an appeal.
When making submissions last week, Repubblika lawyer Jason Azzopardi said that while these proceedings dragged on, two out of the four offences allegedly to be faced by the Pilatus officials, had become time-barred.
When delivering judgment on Thursday, the Constitutional Court stated that the argument by Azzopardi about the prescription of offences was one of the factors underlying its decision ordering the constitutional case to be heard with urgency.
However, the State Advocate’s appeal was to be upheld.
The court said the October 19 judgment meant that the end remedy sought by Repubblika was granted “before the case even started being heard [on the merits],” went on the judges.
The purpose of such interim measures was not to grant the “final remedy before all evidence has been put forward so that the court is in a position to decide the case.”
Nor should such a request for an interim measure serve the court to express its view on the merits at hand.
“Expecting the court to pronounce itself in some manner on the merits at this early stage of the constitutional case, is wrong,” said the court.
If the challenge were to proceed before Magistrate Lia, any decision taken there could still be cancelled if Repubblika were to succeed in their constitutional claims and they also had a further remedy before the Criminal Court.
Hence, there was no danger that Repubblika could end up without an effective remedy, went on the judges.
Having said that, the court concluded that in this case, it would be appropriate for the challenge proceedings to be suspended until the constitutional issue was definitively decided.
This was not because of any prima facie indication of a possible breach of Repubblika’s right to a fair hearing, but only to ensure that in case the constitutional case went its way, the breach would not be further perpetuated.
The challenge case concerned a matter of public interest considering the impact that Pilatus Bank had on the local scene, the court acknowledged.
Given the “sensitivity” of the matter, it ordered the records of the case to be sent immediately to the Registrar so that the First Hall, Civil Court might proceed with the hearing of the case “with urgency.”
This also in light of arguments made by Repubblika’s lawyer about offences being time-barred.
The Constitutional Court was presided by Chief Justice Mark Chetcuti together with Mr Justices Giannino Caruana Demajo and Anthony Ellul.
Lawyers James D’Agostino and Isaac Zammit represented the State Advocate.