Does Prime Minister fear an impeachment vote?

Prime Minister Joseph Muscat appears to be reluctant to see Parliament vote on an impeachment motion against Judge Lino Farrugia Sacco, if his declarations this week are any indication.

By insisting that Parliament should not proceed until an appeal on a ruling issued this week is decided – so far, this appeal has not even been filed, although the judge has declared his intention to do so – Dr Muscat is effectively disregarding the concept of a sovereign parliament whose work cannot be impeded by the courts.

This is arguably made worse by the nature of the appeal; if precedent in both the Constitutional Court and the European Court of Human Rights is any indication, it is highly likely to be thrown out. Rulings in both courts indicate that a breach of the right to a fair hearing – Dr Farrugia Sacco’s main gripe – can only be determined once proceedings are concluded.

So it is not Parliament which should wait for the judge to exhaust his legal remedies; it should be the other way round.

But by the time the Constitutional Court finalises the process, it may be too late for parliament to impeach the judge before he turns 65 – the mandatory retirement age for the Maltese judiciary – in August, particularly since Parliament is likely to go into its summer recess a few weeks earlier.

Dr Muscat’s behaviour suggests that this may be his preferred outcome. There are only two reasonable reasons for such a preference: a desire to spare Dr Farrugia Sacco the indignity of impeachment and an unwillingness to vote on the matter.

While as a judge, Mr Justice Farrugia Sacco is not directly involved in politics, his son David had been a Labour Party candidate in the last general election.

Whether government MPs would be willing to vote against the judge remains to be seen: the Labour Party has been non-committal over his case ever since an impeachment motion was originally filed by former Prime Minister Lawrence Gonzi in 2012.

Dr Gonzi had presented two impeachment motions on the same day – the other was against the late Judge Ray Pace, who was facing bribery charges – and Dr Muscat’s reaction then was perhaps telling. Back then, he took to Twitter to state that, “Labour will back impeachment of Judge Pace.”

But if the Prime Minister – and his government – did feel that Mr Justice Farrugia Sacco should not be impeached, the correct course of action would have been, of course, to speak up and explain why he believed this to be the case.

Dr Muscat had a golden opportunity to do so when Speaker Anġlu Farrugia ruled that Dr Gonzi’s motion had been rendered null since he had resigned from Parliament, but he opted to file a fresh motion instead.

Precedent weighs against judge

In his court case, Mr Justice Farrugia Sacco raised a number of issues concerning the way his case has been handled by the Commission for the Administration of Justice.

He had been dragged into controversy after a report by the London-based The Sunday

Times, which covertly recorded him, suggested that as president of the Malta Olympic Committee, he was ready to allow 2014 Winter Olympics tickets allocated to the MOC to be bought, in breach of International Olympic Committee rules.

The IOC ultimately cleared him of wrongdoing, but the CAJ found him prima facie guilty of a breach of ethics due to his refusal to follow its recommendation – made in 2008 – that he should resign from the MOC.

In her ruling, Judge Lorraine Schembri Orland rejected her colleague’s argument that the CAJ’s decision had been rendered null when Dr Gonzi’s ruling was declared to be, arguing that Dr Muscat’s motion did not require the commission to look into any additional facts.

But what may be the most relevant point, at this stage of proceedings, is that Mr Justice Farrugia Sacco’s claim that his right to a fair hearing was breached was deemed to be premature, an argument which was backed by local and European precedent.

One of the rulings cited was made by the Constitutional Court last year, in the case filed by Darren Aquilina against the Prime Minister. The Court had observed that, “the determination of the existence or not of a breach of the right to a fair hearing necessitates an examination of the judicial process in its entirety.” A European Court of Human Rights ruling (van Mechelen and others v. The Netherlands) makes a similar argument. The court ruled that its task was not, “to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as whole, including the way in which evidence was taken, were fair.”

The CAJ does not decide on its own – as evidenced by Mr Justice Farrugia Sacco’s decision to ignore its recommendation to resign from the MOC in the first place – but merely makes recommendations.

It will be up to Parliament to decide – provided it is given the opportunity to do so in the first place – and according to Madam Justice Schembri Orland and the case law she cited, only then should Mr Justice Farrugia Sacco proceed to court if he feels that his right to a fair hearing has been breached.

At this point, he would be free to bring up any stage of the proceedings – including the CAJ investigation, whose validity and integrity he has questioned. He may even end up taking the case to the European Court of Human Rights if he deems it to be necessary.

Judge Lino Farrugia Sacco