Magistrate Nadine Lia has been asked to adjourn a court sitting due on Thursday where she is to continue to hear submissions in the Repubblika challenge for the police commissioner to take criminal action against several former top officials of Pilatus bank.
On Tuesday, lawyers representing both rule of law NGO Repubblika and the Office of the State Advocate agreed that Thursday's sitting should be adjourned pending appeal procedure by the latter to contest a judge's decision last week ordering the magistrate off the case.
Repubblika are claiming that Magistrate Lia has a clear conflict of interest since her father-in-law, Pawlu Lia, was counsel to a number of public figures close to the Egrant inquiry where the now-shuttered Pilatus Bank featured prominently.
And the crux of Repubblika’s challenge was precisely to call upon the Police Commissioner to take criminal action against several former top officials at the bank.
If Magistrate Lia were to continue hearing that case, their fundamental right to a fair trial would be breached, Repubblika argued when taking their grievances before the constitutional courts.
Pending a decision on the merits of that claim, Mr Justice Spiteri Bailey last Friday granted Repubblika an interim measure and ordered the challenge proceedings to be assigned to another magistrate.
But that decision now hangs in the balance after the State Advocate filed an application seeking leave to appeal and also asking for the interim measure to be suspended.
State Advocate lawyer James D’Agostino stressed that Tuesday's hearing was all about the interim measure appeal, adding that last week certain quarters “wrongly gave the impression that the case was decided.”
The issue about the interim measure certainly merited being decided by the highest court of the land, he said. The irremediable prejudice claimed by Repubblika was not a matter to be debated at this stage.
As for the request to suspend the interim measure, if that measure remained in force, what would the State Advocate appeal for, argued the lawyer.
Last week, the civil society organization flagged Mr Justice Spiteri Bailey’s decision as “a historic victory.”
Even on that account, the decision merits confirmation by the Constitutional Court, went on D’Agostino, adding that Repubblika was “forum shopping.”
That last remark triggered a heated rebuttal by Repubblika lawyer, Jason Azzopardi.
“Not true! Any magistrate except her [Lia]”, shouted Azzopardi.
Such a decision meant that anyone could adopt such course of action to remove any magistrate not to one’s liking, went on D’Agostino.
As for the magistrate’s father-in-law, to date there was nothing in the public domain that Pawlu Lia was assisting any of the five Pilatus officials mentioned in Repubblika’s challenge case.
“He was the lawyer of Keith Schembri. He should be charged” rebutted Azzopardi.
Repubblika’s main concern was not the State Advocate’s request to appeal but for the interim measure to remain in force pending that appeal.
“The day after tomorrow we are set to appear before the magistrate. The State Advocate will suffer no prejudice if the interim measure remains in force. But we will if that measure is suspended,” argued Azzopardi.
The State Advocate was arguing that there were other challenge proceedings, including those filed by Yorgen Fenech and Melvin Theuma, where Magistrate Lia had not abstained. But in reality, Magistrate Lia ought not have heard those proceedings before the trial where Fenech stands accused as accomplice in the 2017 murder of Daphne Caruana Galizia, while Theuma, self-confessed middleman, is the prosecution’s main witness, Azzopardi argued.
Should Magistrate Lia uphold Fenech’s challenge, the trial would fall through.
After hearing submissions, Mr Justice Spiteri Bailey adjourned the case for a decree on the State Advocate’s requests to November.
“But what about Thursday’s challenge hearing?”persisted Azzopardi.
“If common sense prevails, that hearing should be adjourned,” State Advocate lawyer Isaac Zammit remarked.
Seeing that the parties were in agreement on that, the judge minuted a note to that effect, stating that they were to make a joint request before Magistrate Lia for the challenge proceedings to be suspended pending a decision on the issues debated today.
“The court urges the Magistrates’ Court to uphold the request to be made jointly by the parties,” declared Mr Justice Spiteri Bailey.