A final judgment as to whether Mr Justice Antonio Mizzi is to abstain from presiding over the Panama appeals, is expected in October, days before the judge reached retirement age on November 16.
This was the outcome of a lengthy morning sitting before the Constitutional Court wherein legal arguments were trashed out by lawyers making final submissions on the basis of an appeal filed by the Attorney General from a judgment delivered in July.
The First Hall, Civil Court had concluded that Mr Justice Mizzi was to abstain from hearing the appeal proceedings since his impartiality could be placed in doubt owing to comments made by his Labour MEP wife Marlene Mizzi over the Panama Papers scandal.
In its decision, that court said the fact that the judge was married to an MEP, on its own, did not put the judge's impartiality in doubt, but when coupled with the comments made by Ms Mizzi, it gave rise to serious doubt about justice being seen to be done.
An appeal by the AG against that judgment led to Wednesday morning’s sitting where Victoria Buttigieg, appearing on behalf of the AG, listed a number of arguments, stating that former Opposition leader Simon Busuttil lacked victim status in the constitutional lawsuit filed by him after Mr Justice Mizzi had turned down the request for recusal.
Following the judge’s refusal to accept the challenge, Dr Busuttil had filed a separate constitutional case claiming a violation of his right to a fair hearing and requesting that the appeals be assigned to a different member of the judiciary.
Read: Busuttil wins case on recusal of Mr Justice Antonio Mizzi
“In this case we have no criminal charges against anyone. There is no suspect or accused… A constitutional application is to be filed by a party proving to have a juridical interest,” Dr Buttigieg argued.
As for possible doubts on the Judge’s impartiality, Dr Buttigieg pointed out that Judge Mizzi and his wife “operated in different spheres,” further noting that Ms Mizzi had been elected to her EU parliamentary seat by a popular vote. “She convinced the electorate alone.”
Next to make submissions was Dr John Bonello, assisting one of the respondents in the Panama Appeals, who pointed out that there had been numerous judgments, even before the European Courts, upholding the right of members of the judiciary to express an opinion.
“It’s as though a judge is not entitled to his opinion or to marry a woman in politics,” Dr Bonello argued observing further that “our Courts today are not the same as in the 1960s”.
Fine details as to the nature of a magisterial inquiry in terms of law were delved into by Edward Gatt who pointed out that such facts had been completely overlooked by the first court in its decision upholding Dr Busuttil’s claim.
For Pawlu Lia, the whole issue pivoted upon whether Dr Busuttil had a juridical interest or not.
“Where is the juridical interest?” Dr Lia asked, pointing out that Dr Busuttil had filed his report based on facts which had taken place some four years previously. “He did nothing in those four years and then, at the opportune political moment, filed a report.”
Rebutting these arguments, Jason Azzopardi, assisting Dr Busuttil, said that it was indeed a fallacious argument to state that the safeguards to the right to a fair trial did not apply to the pre-trial stage, adding that this was a dangerous argument.
“This is a case of a married couple. We do not doubt the integrity of Mr Justice Mizzi. This is not about integrity but about the appearance or otherwise of that integrity,” Dr Azzopardi continued.
Irrespective of what the judge’s wife had stated in the European Parliament, Ms Mizzi owed loyalty to her leader, namely the Prime Minister.
“That person is to appear before her husband who is to decide whether criminal proceedings are to be undertaken in his regard,” Dr Azzopardi declared.
As for the request for moral damages made by Dr Busuttil in his cross-appeal, Dr Azzopardi pointed out that the whole purpose of the original report was for an inquiry to be held with urgency, to ensure that crucial evidence would be preserved.
“Who is going to make good for these last 12 months?” asked the lawyer with reference to the time spent in lengthy court proceedings debating the recusal or otherwise of Mr Justice Mizzi.
“According to the AG the remedy, if any, would be for the judge to be substituted. That’s all! We all love justice. Who is going to make good for these last 12 months?” Dr Azzopardi concluded, remarking that after suffering a breach of rights it would be adding insult to injury for Dr Busuttil to also suffer expenses of the lawsuit.
Chief Justice Joseph Azzopardi, Mr Justice Giannino Caruana Demajo and Mr Justice Noel Cuschieri presided over the court.
The case was adjourned for judgment in October.