There is nothing in the law or the Constitution that should prevent Parliament from making its decision on the new motion to impeach Mr Justice Lino Farrugia Sacco, constitutional experts told Times of Malta yesterday.
The House Business Committee is next week expected to discuss the way forward after the Commission for the Administration of Justice stood by its recommendation that Parliament move ahead on an earlier impeachment motion submitted by former Prime Minister Lawrence Gonzi.
The ball had been pushed back to the commission’s court after the Speaker ruled that the motion presented in 2012 by Dr Gonzi was no longer valid.
Technically, I believe Parliament has all the powers to proceed
Prime Minister Joseph Muscat had then presented a new impeachment motion. But this drew criticism from the Opposition because the move started the impeachment process from scratch – with the commission being asked for a new recommendation – and this would likely have delayed Parliament’s decision until after the judge retired this August.
However, the Commission came back with a quick decision: its position was unchanged from the recommendation it submitted last month.
Mr Justice Farrugia Sacco has complained the commission’s position is denying him due process and he could file a Constitutional case.
However, former European Court of Human Rights Judge Giovanni Bonello told Times of Malta that Parliament can proceed and is not bound to wait for further court proceedings.
“Technically speaking, I believe that Parliament has all the powers to proceed with the impeachment case of a judge even if this is challenged before the Constitutional Court,” he said.
He said the House could determine its own procedures independently and the court cannot interfere in this.
“There is no written law on this matter requiring Parliament to suspend progress, or giving the Constitutional Court power to issue an interim order to the House of Representatives to suspend proceedings,” Judge Bonello argued.
However, he added that it would be prudent for Parliament to halt the proceedings should a case be filed.
“I believe that normally, Parliament, in a spirit of prudence, rather than on law, will await the Constitutional Court’s judgment before it takes the final decision.”
On the other hand, Judge Bonello said he found it difficult to imagine a Parliament that accepted it was subordinate to a court that had not yet ruled on the existence of a breach of human rights, or accepted to receive interim directives.
Kevin Aquilina, Dean of the Faculty of Laws, agreed that Parliament could move on its own steam. However, he said that in case of an alleged breach of human rights, the court could stop Parliament.
“Parliament is not above the law even though it’s an independent institution,” he argued.
“I personally think that the judge will probably go to court to try to stop the parliamentary procedures. There is no clear way forward but in politics everything is possible,” he said.
These latest moves in the legal chess game that has characterised the case for the past two years or so come after The Sunday Times of Malta revealed that Mr Justice Farrugia Sacco is still involved in the running of the International Committee for the Mediterranean Games (ICMG) despite not seeking re-election as Malta Olympic Committee president.
The issue is at the heart of attempts to seek his impeachment, since the judiciary’s code of ethics precludes members of the Bench from holding “any office or post, even though of a temporary, voluntary or honorary nature, and may not perform any activity, which in the opinion of the commission may compromise or prejudice their position or their duties or functions”.
It was partly because Mr Justice Farrugia Sacco had ignored an earlier call by the commission to step down from his post at the MOC that it decided there was prima facie proof of “misbehaviour” on his part.
Meanwhile, the Opposition on Thursday asked the Speaker for an urgent meeting of the House Business Committee but he has not replied and questions sent by this newspaper remained unanswered by the time of writing.
The committee next meets on Wednesday and it is expected to discuss the case then.