The Pandora’s Box opened due to conflicts of interest
Following an extensive search on Malta’s most read blog, belonging to slain journalist Daphne Caruana Galizia, the only magistrate found to have never been mentioned is Magistrate Ian Farrugia.
Does that mean he is the only magistrate able to hear the compilation of evidence against the three suspects arraigned in connection with the assassination without anybody calling into question his impartiality?
Questions have been raised ever since two magistrates accepted requests for recusal.
In total, Malta has 22 magistrates. Once the police filed charges against Vince Muscat, George Degiorgio and Alfred Degiorgio, 30 days are allotted for the compilation of evidence to begin, otherwise the suspects would be released unconditionally. Due to Caruana Galizia’s role as a highly public person, many people in politics, the press, business and the judiciary have been discussed on her blog.
The question therefore is whether simply being mentioned in the blog, in either a negative or positive way, would pave the way for a magistrate to recuse themselves or accept a defendant’s request to do on the basis of justice, as well as being done, is seen to be done.
Chief Justice Silvio Camilleri has appointed Magistrate Claire Stafrace Zammit to oversee the compilation which will commence today. A search on Caruana Galizia’s blog found that the magistrate has been mentioned once, when she reproduced a court story from the Times of Malta. She was neither criticised nor praised, but the details of a court case presided over by Stafrace Zammit were outlined in a newspaper, and reproduced on Caruana Galizia’s blog. Is this enough for the defence to request the magistrate’s recusal, or for the magistrate to recuse herself?
In total, Magistrates Consuelo Scerri Herrera, Aaron Bugeja, Charmaine Galea, Joanne Vella Cuschieri, Joseph Mifsud, Monica Vella, Caroline Farrugia Frendo, Grazio Mercieca and Yana Micallef Stafrace have all been criticised, either due to their actions – to varying degrees – or because of the way they were appointed, in the blog of Caruana Galizia.
Magistrates Paul Coppini, Anthony Vella, Audrey Demicoli, Doreen Clarke, Gabriella Vella, Claire Stafrace Zammit, Marse Anne Farrugia, Francesco Depasquale, Josette Demicoli, Neville Camilleri, Natasha Galea Sciberras and Donatella Frendo Dimech have all been mentioned in the reproduction of court stories from local media sites in the blog.
Should Micallef Stafrace end up recusing herself, possibly due to the simple mention on the blog or because of some other unknown connection, Chief Justice Silvio Meli will have to go about choosing the fourth magistrate.
Possible, and in some cases quite tenuous, links between the victim and the magistrates are not the only considerations to make. Magistrate Anthony Vella cannot be appointed because he is the inquiring magistrate in the murder case. Aaron Bugeja, Josette Demicoli and Natasha Galea Sciberras are all conducting inquiries related to the Panama Papers and other allegations levelled against top government officials.
Doctrine of necessity
The Dean for the Faculty of Law, Kevin Aquilina, was asked whether this situation had opened up a Pandora’s Box in which criminals simply needed to mention or criticise a magistrate on social media to create grounds for recusal.
“I wouldn’t say so. A case will surely be tried even after the fifth or sixth magistrate abstains. The only implication is that this delays the process,” Aquilina explained.
In a hypothetical scenario where all the magistrates in the list would refuse to hear the case, what is called the ‘Doctrine of Necessity’ would come into play, where the last one in the list would have to take on the case, regardless of bias or other issues.