A libel case has stoked legal and political controversy after a magistrate was asked to remove herself and refused, and passed what a lawyer and Nationalist MP has described as a “political comment”.
The request for the magistrate to withdraw will now be taken before the Constitutional Court.
The libel case was instituted by Victoria’s PN mayor Samuel Azzopardi against Gozo Minister Anton Refalo, after the minister made a remark about a drink-driving incident involving the mayor.
The lawyer representing the mayor, Nationalist MP Jason Azzopardi, filed a request last week for Magistrate Joanne Vella Cuschieri to recuse herself from the case as she was a Labour Party candidate in the last general election.
Dr Azzopardi pointed out that the libel case involved two people from opposing political parties and would be decided by a magistrate who was an active member of the Labour Party just three years ago.
He argued that the criteria of impartiality as set out in the Constitution and European Convention on Human Rights could not be satisfied due to her past political affiliations.
Court records show that Magistrate Vella Cuschieri questioned whether Dr Azzopardi would have requested a recusal had the case been assigned to Magistate Paul Coppini. Dr Coppini was a Nationalist Party candidate in the 1987 general election.
Dr Azzopardi replied that he would not have asked for Dr Coppini to recuse himself had he been assigned to the case, as it would have been up to Dr Refalo to do so.
Contacted by The Sunday Times of Malta, Dr Azzopardi accused the magistrate of replying to his legal arguments by making a “political” comment.
In his arguments, Dr Azzopardi cited numerous examples of case law in which it was stated that even the appearance of impartiality was important.
The magistrate argued that she had taken an oath to be independent and impartial when she was sworn in to the role in March 2014.
She insisted that she had always been loyal to the oath and had no intention of breaching it in this court case or any other.
Saying there was no valid legal reason for her to abstain from hearing the case, she turned down Dr Azzopardi’s request and deferred the case to October.
Dr Azzopardi said he now intends to file a request for a recusal before the Constitutional Court.
“Magistrate Vella Cuschieri was very vociferous and staunch when she was associated with the Labour Party.
“Based on jurisprudence, impartiality has to be substantial…
“She passed a political comment about Paul Coppini. It is not something you expect to hear in open court,” Dr Azzopardi added.
The Victoria mayor was last month slapped with a six-month driving ban after being found guilty of drink driving.
He filed for libel over comments made by Dr Refalo regarding the incident.