A court challenge by the Degiorgio brothers to the government's refusal to grant them a presidential pardon started being heard on Tuesday, with lawyers for the state insisting that the president cannot be sued even though he is listed as one of the parties in the case.

George and Alfred Degiorgio are awaiting trial for the murder of Daphne Caruana Galizia in October 2017. They requested a pardon in exchange for information they claim to have about “very serious crimes.”  The request was made in March. The brothers subsequently made a second request for a pardon, which was dismissed on Monday. 

The brothers filed two actions, one claiming a breach of their fundamental right to a fair hearing, or rather “no hearing at all,” and the other seeking judicial review of an administrative act, namely Cabinet’s decision recommending refusal of the pardon.

But before the court could delve into the merits of the dispute, it had to first overcome a hurdle presented by a provision of the Code of Organization and Civil Procedure which grants immunity to the President of Malta.

“The law speaks most clearly. It excludes an action such as this,” said lawyer Stefano Filletti, representing the Office of the President. 

Article 742A expressly states that, “No civil proceedings whatsoever shall be taken against the President of Malta in respect of acts done in the exercise of the functions of his office,” Filletti observed.

“The President represents the State of Malta. He is above state institutions. This action simply cannot stand,” insisted Filletti, backed by a number of lawyers from the Attorney General’s and State Advocate’s Offices, including the State Advocate himself, Chris Soler.

“If I sued someone whom I shouldn’t have, wouldn’t the court simply declare that he is non-suited?” Degiorgios’ lawyer, William Cuschieri rebutted. He   otherwise suggested a correction to the original applications which had named the President, and not his office, as party to the proceedings.

As the verbal spat continued,  Mr Justice Grazio Mercieca intervened from time to time to restore calm and direct the flow of arguments.

“There seems to be a mental obstacle on the other side to stop the case from happening,” remarked Cuschieri, as the Degiorgio brothers sat calmly in the courtroom, silently observing all the action under the close watch of four armed security guards, while two other officers stood outside the courtroom.

“This is a known case. The facts are known. Why are there 10 lawyers on the other side!” remarked Cuschieri.

“Wasn’t it you who summoned the parties!” promptly replied the chorus of lawyers representing the President, the Cabinet and the State.

The discussion then turned towards the issue of preliminary pleas raised by the respondents.

“I’m not challenging the refusal or otherwise of the pardon but what the Attorney General and the Police Commissioner did,” explained Cuschieri, referring to the procedure whereby a request for a pardon by the head of state, is considered by Cabinet upon advice of the AG and the Police Commissioner.

The Degiorgios’ lawyer is arguing that such a decision was an administrative act taken in violation of the principles of natural justice and amounting to an abuse of power by a public authority.

He said there had been no communication with the brothers prior to Cabinet’s decision and they had only learnt through media reports that their request had been turned down.

Cuschieri informed the court that besides the applicants’ affidavits, there were only some three witnesses to summon and therefore, he hoped to wrap up the applicants’ evidence stage in two sittings or so.

In light of such arguments, Mr Justice Mercieca adjourned the case, after minuting that the constitutional case would be put “on hold” pending a decision on the administrative action.

Meanwhile, the Degiorgios are to settle the issue raised by the respondents about the legitimacy of suing the President, by making any necessary correction to the records of the case.

Unless that is settled, the court will decree upon the matter after the next hearing. 

Lawyers Maurice Meli also represented the President while lawyer Miguel Degabriele also represented the other respondents.