Raphael Vassallo A former chief justice has dismissed as ‘pointless’ the recent pressure piled on Magistrate Antonio Micallef Trigona to abstain from a case against Malta Independent columnist Daphne Caruana Galizia, after the latter signalled her intention to petition Chief Justice Vincent De Gaetano to have him replaced.
“There is no point in petitioning the Chief Justice, because his office doesn’t come into it at all,” retired Chief Justice Prof. Giuseppe Mifsud Bonnici said when contacted yesterday.
“The issue of objections to and abstentions by judges is covered by Chapter 12 of the Laws of Malta: i.e., the Code of Organisation and Civil Procedure,” he added.
“Here you will find a very clear list of reasons why a judge may choose to abstain from hearing a case, and how objections can be made. It is on the basis of these reasons, and only these reasons, that a magistrate can abstain.”
Mifsud Bonnici also outlined the standard procedure for such objections.
“The same chapter makes it very clear that any objection to a presiding magistrate or judge has to be submitted in court, and the reasons made public,” he said, referring to regulation 735 of Chapter 12 (see right).
The issue arose after columnist Caruana Galizia petitioned the Chief Justice to have Magistrate Consuelo Scerri-Herrera removed from two libel cases in which she was involved: one brought against her by Alleanza Nazzjonali Repubblikana president Martin Degiorgio, and the other initiated by Caruana Galizia against maltastar.com editor Kurt Farrugia.
Caruana Galizia had previously revealed details of Scerri-Herrera’s private life, including her extra-marital relation with Nationalist candidate Robert Musumeci, on her blog. The same magistrate later chose to abstain from these two cases, citing as justification a police report she herself has filed against Caruana Galizia.
However, it transpired that a meeting was between Scerri-Herrera and Chief Justice Vincent De Gaetano on the same morning of her abstention: fuelling speculation that Scerri-Herrera’s decision resulted from pressure placed on the judiciary as a whole by Caruana Galizia’s online output.
These rumours escalated this week, when Caruana Galizia once again used her blog to object to a magistrate: this time, Antonio Micallef Trigona, appointed to hear Scerri-Herrera’s case against her.
Lawyers who spoke to this newspaper expressed incredulity that ordinary court procedure appears to have been bypassed in these two instances.
“What is happening is nonsensical, and also very dangerous,” one criminal lawyer said. “By this reasoning, anyone who wishes to have his or her case continually deferred, can do so simply by attacking successive magistrates in the media pressuring them into abstaining because of an artificially engineered ‘bias’ against the accused.”
Procedure on abstentions of judges
Laws of Malta, Chapter 12, sections 734, 737
A judge may be challenged or abstain from sitting in a cause:
• if he is related by consanguinity or affinity in a direct line to any of the parties...
• if he is the tutor, curator, or presumptive heir of any of the parties; if he is or has been the agent of any of the parties to the suit; if he is the administrator of any establishment or partnership involved in the suit, or if any of the parties is his presumptive heir;
• if he had given advice, pleaded or written on the cause... (or) if he had previously taken cognizance of the cause as a judge or as an arbitrator:
• if he has made any disbursement in respect of the cause;
• if he has given evidence or if any of the parties proposes to call him as a witness;
(e) if he, or his spouse, is directly or indirectly interested in the event of the suit;
• if the advocate... pleading before a judge is the son or daughter, spouse or ascendant of the said judge;
• if the advocate or legal procurator pleading before a judge is the brother or sister of the said judge;
• if the judge or his spouse has a case pending against any of the parties to the suit of happens to be his creditor or debtor in such manner as may reasonably give rise to suspicion of a direct or indirect interest that may influence the outcome of the case.
• when (the judge) has previously taken cognizance of and expressed himself on the same merits of that cause
737. Any objection to a judge shall be raised by the parties in open court, and the reasons thereof shall be alleged and, where necessary, proved.
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