An attempt by Yorgen Fenech to have Madam Justice Edwina Grima disqualified from presiding his trial has been dismissed by theFirst Hall, Civil Court in its constitutional jurisdiction, which declared that this was “solely the umpteenth attempt to uselessly prolong proceedings.”

Fenech had filed the case after Madam Justice Grima rejected an application by his lawyers to abstain from the trial where the businessman stands accused of complicity in the murder of Daphne Caruana Galizia.

Fenech had 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.”  

Secondly, if Madam Justice Grima presided over the trial, she would not be able to preside over any future appeal and that meant that the Court of Criminal Appeal would be deprived of “the most experienced member” and that too amounted to a breach of Fenech’s right to a fair hearing.

Dual argument 'lacks all sense of logic'

When delivering judgment the First Hall, Civil Court in its constitutional jurisdiction, presided over by Madam Justice Anna Felice, declared that it was “perplexed” by this dual argument which “lacked all sense of logic.”

Logic dictated that one either had trust in the judge or did not.

However in this case, on the one hand, Fenech’s lawyers argued that there was no peace of mind as to Judge Grima’s impartiality, given that the AG was involved in her appointment procedure.

On the other hand, the lawyers were saying that if Judge Grima presided over the trial, she would not be able to preside over the case at appeal stage.

The court said it could not help note “great incongruity” in such arguments.

Moreover, after first requesting the judge’s recusal, Fenech subsequently declared that he had full confidence in the judge and did not object to the continuation of the criminal proceedings at pre-trial stage.

The parties had also registered agreement that the judge could proceed to deliver judgment on those pre-trial pleas.

That judgment is expected this month.

Fenech’s lawyers had also voiced doubt because of the fact that a court attorney working alongside Madam Justice Grima had previously worked at the AG’s office and had also been involved in proceedings against Fenech.

However, the judge had expressed “every assurance” in open court that in such circumstances, when perceiving any possible conflict of interest, she would handle the case personally and would not hand it over to her attorney.

No active role by the AG in the selection of the judge

As for the AG’s involvement in the appointment of the judge, the crux of Fenech’s claim lay in an “impression that the AG as prosecutor was somehow involved,” the court observed.

Yet while alleging some “form of bad faith” on the part of the AG, Fenech failed to prove that the AG played an active role in the process.

The AG’s signature was simply needed as a “formality” and there was no proof whatsoever that the AG was consulted before Judge Grima was selected.

On the contrary, it was clear that the judge had been appointed by the Chief Justice “alone” according to the procedure laid down by law.

The documentation was handed over to the AG simply when the appointment was a fait accompli and the AG's signature did not imply that she had a right to give an opinion.

The AG acted “simply as messenger,” forwarding the document in the process, observed Madam Justice Felice.

The court could not help but observe that Fenech’s lawyers had voiced no similar concern over the involvement of the Justice Minister.

They argued that the AG’s involvement could send out a “wrong message” and give rise to a lack of trust in the judicial process.

Yet, the minister’s involvement “did not seem to worry the applicant nor cause him prejudice,” observed the court.

When all was considered, the court concluded that Fenech’s complaint was frivolous and “intended solely as the umpteenth attempt to prolong proceedings uselessly.”

The court thus rejected Fenech’s claims.

Meanwhile, his lawyers have signalled their intention to appeal the judgment.

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