Lawyers assisting Minister Konrad Mizzi in a constitutional case filed by him in the latest twist to the ongoing Panama Appeals saga raised a rather uncommon request for a provisional measure pending a decision on an interim measure.
This was the crux of Thursday’s first hearing in the constitutional case filed by the minister on December 7 claiming that his fundamental rights had been breached in the judicial process sparked off by a request for a magisterial inquiry by former Opposition Leader Simon Busuttil following revelations in the Panama Papers.
Dr Mizzi’s constitutional application had prompted a request by Dr Busuttil and MEP David Casa for authorisation to intervene in the suit.
Mr Justice Robert Mangion, to preside over Dr Mizzi’s constitutional case, on Wednesday decreed that the court would first decide upon the intervention request by Dr Busuttil and Mr Casa and subsequently proceed to consider the minister’s request for the interim measure, namely the postponement of proceedings currently pending before the Criminal Court until the constitutional case is concluded.
When this case was summoned on Thursday, all the interested parties turned up in court, apart from Dr Mizzi.
“Is the applicant not here?” Mr Justice Robert Mangion asked the minister’s lawyers.
“He’s abroad,” lawyer John Bonello replied.
As the hearing kicked off, several procedural issues were discussed and dealt with by the court before the focus turned upon an additional request made on Wednesday by Dr Mizzi for the stay of the proceedings before the Criminal Court (the Panama Appeals).
We cannot accept delays without some minimal form of protection
That request came about in the form of another application filed by the minister’s lawyers on Wednesday afternoon in the Court Registry, minutes before closing time, which act was notified to the parties in the course of Thursday’s hearing.
“We filed it after your decree,” explained lawyer Aron Mifsud Bonnici, the minister’s other lawyer.
“We had filed a similar request before the Criminal Court (presided over by Mr Justice Giovanni Grixti) but to our knowledge, that court has not yet pronounced itself in that respect.”
The purpose of this last-minute application was to request Mr Justice Mangion to deliver a pronouncement regarding the stay of the criminal appeals, before dealing with the issue of the intervention in the suit by Dr Busuttil and Mr Casa.
This could perhaps be described as an interim measure pending a decision on an interim measure.
“The raison d’etre behind these constitutional proceedings was to stay the criminal proceedings before the other court. If no interim measure, provisional measure - call it what you may - is given, the whole purpose is lost,” Dr Bonello argued, as the court granted the AG lawyers a right to submit their reply to this latest request by the applicant by Boxing Day.
“The measure we are requesting today may perhaps be best likened to a precautionary warrant,” Dr Bonello continued, taking a leaf out of civil procedure and drawing the comparison to a spoliation suit where a person could request a provisional warrant of prohibitory injunction to safeguard his property from damage caused by his neighbour.
“If Instead of Konrad Mizzi we had here Paul so-and-so, the request for a provisional measure would, with 90% certainty, be upheld,” Dr Bonello argued, adding that until the intervention issue was decided upon, some form of provisional safeguard was necessary.
“We cannot accept delays without some minimal form of protection,” the lawyer stressed.
Asked directly by Judge Mangion as to whether he could cite any jurisprudence on this matter, Dr Bonello replied in the negative.
Tracing the judicial process which had led to the current constitutional case filed by Dr Mizzi, Dr Bonello pointed out that Dr Busuttil himself had also requested a stay of proceedings before the Criminal Court, until he took his grievance before the European Courts.
“Isn’t all this in the records of that process?” Mr Justice Mangion intervened, making reference to the Panama Appeals records which are to be exhibited by the Court Registrar and inserted into the acts of this constitutional case.
“Yes. Except for one thing,” Dr Mifsud Bonnici replied. “Dr Busuttil had requested the stay of proceedings before Mr Justice Antonio Mizzi, so as to take his case abroad, but then failed to do so.”
“Judge Mizzi was to retire within one week. Show loyalty to the court” interrupted lawyer Jason Azzopardi, earning the rebuke of the judge who pointed out that, so far, Dr Azzopardi had no right to address the court since his clients (Dr Busuttil and Mr Casa) were not yet party to the proceedings.
Having heard these submissions by the applicant’s lawyers, the Court declared that it would decide upon this provisional remedy by means of a decree in chambers once that the AG had filed his reply by Wednesday.
The issue concerning the intervention of Dr Busuttil and Mr Casa is to be dealt with during the next adjournment of the case in January.