Recuse me, please?

This column was originally printed in MaltaToday in Sunday

OK, I shall have to admit that the latest twist in the Daphne Caruana Galizia murder case has left me somewhat stumped. I suppose you’ve all read the court reports, so you know what happened: the defence counsel requested the recusal of Magistrate Donatella Frendo Dimech, on the grounds that she had been in the same class as the victim’s sister... 34 years ago... and separately, that the same magistrate had extended condolences to Daphne’s family after the murder.

So far, not much to report. It is to be expected that the counsel for the defence would raise any conceivable objection to the presiding magistrate... and in this case, the request makes sense, if only from a purely logistical angle.

Presumed ‘reasons for recusal’ were handed to the defence team on a silver platter by Magistrate Frendo Dimech herself... all but gift-wrapped as an early Christmas present

One other curiosity about these proceedings is that the defence lawyers had only just been assigned the case by the same magistrate. All three of the lawyers representing the accused were appointed earlier during the same sitting. So yes, I suppose it’s reasonable that they would resort to any of the tried-and-tested delaying tactics: they need time to build their case.

But that, as far as I can see, is where the comprehensible ends, and the oddness begins. Almost immediately after assigning those three defence lawyers, the magistrate herself volunteered all the information regarding her childhood familiarity with the victim’s sister, including the details concerning the condolences, the annual birthday greetings, etc. So these presumed ‘reasons for recusal’ were not – as they tend to be in other cases – ferreted out by the lawyers themselves. In fact, they couldn’t have been... as those lawyers didn’t even know they would wind up on this case, until after the court was already in session. No, they were handed to the defence team on a silver platter by Magistrate Frendo Dimech herself... all-but gift-wrapped as an early Christmas present.

And yet, when Lawyer Martin Fenech asked for a recusal “since there was a closeness between the magistrate and family”... the same magistrate interjected to deny that there was any ‘closeness’. So... um... why did she bring up that ‘childhood connection’ in the first place? Why did she create the impression of a ‘close’ rapport with the victim’s family... if, in her own esteem, this rapport wasn’t all that ‘close’ anyway?

Meanwhile, I should point out that the prosecution rightly objected to the request, arguing that “the rules governing court proceedings list instances where the court would be prejudiced, and the giving of condolences was not one of them”. (Note: I’m assuming that ‘having been to school with a murder victim’s family-member 34 years earlier’ is not listed either... but then, you wouldn’t expect the rules to go into such spectacular detail, would you?)

OK, now let’s do what the court does, and take a short recess to re-examine what we have so far. Defence lawyers request the recusal of magistrate, on the grounds of a possible ‘conflict of interest’, raised – and almost immediately retracted – by the magistrate herself. Prosecution objects, on legal grounds that seem (to me, at any rate) to be perfectly reasonable.

So what happens next? The magistrate adjourns the court to consider the defence’s request; and two hours later, she re-emerges to inform us all that she would, after all, recuse herself... while simultaneously giving all the reasons why she doesn’t really have to.

After pointing out that “there was no basis for the recusal under the code of organisation and civil procedure”, Frendo Dimech added: “Even appearances might be of certain importance. Justice must not only be done but must be seen to be done... thus any judge in respect of whom there is reason to fear some [bias] must withdraw.”

Now: like I said at the beginning, this development has me completely flummoxed. Small wonder so many international doubts seem to exist about our justice system... if a magistrate can simply wash her hands off such a sensitive case, on such a flimsy pretext.

First off: seeing as the objection had been raised with respect to Magistrate Frendo Dimech’s impartiality in hearing this case... how on earth did it even fall to the same magistrate to take a decision on the basis of that objection?

Why did she create the impression of a ‘close’ rapport with the victim’s family... if, in her own esteem, this rapport wasn’t all that ‘close’ anyway?

To be fair, this question doesn’t seem to be unique to this particular case. When Judge Antonio Mizzi was assigned to hear the PN’s appeal against a ruling by the lower courts recently – i.e., Magistrate Ian Farrugia’s decision to launch an inquiry into the Panama Papers revelations - the PN objected to Mizzi, on the grounds that he is also married to a Labour Party MEP. I won’t go into the merits of that argument... other than to say that: a) I find the objection equally ludicrous, for more or less the same reason (see below).. but also that; b) at least, it is rooted in a rapport which is certainly ‘close’, and which is far more ‘contemporary’ than a vague and extremely tenuous connection going back 34 years into one’s childhood.

In both cases, however, the decision (to recuse or not to recuse) was taken by the very person whose ‘impartiality’ had been called into question in the first place. It’s a classic example of ‘being a judge in your own court’, if ever I heard one.

And the implications are positively bizarre. If you had to apply the same legal reasoning to practically any other case, you will find that – in practice – it obviates the needs for judges and magistrates in the first place. If Judge Antonio Mizzi and Magistrate Frendo Dimech can simply decide for themselves whether they are ‘impartial’ enough to hear a case... it should follow that anyone accused of any crime at all, should likewise be empowered to pass judgment on themselves.

But I mention that just to illustrate the sheer absurdity of the legalistic gymnastics we have all just witnessed. What worries me more are the long-term implications. If a magistrate can recuse herself because she had been to school with – or exchanged a polite social greeting of any kind with – someone connected to case, three whole decades before it even happened... I reckon there’s not a single judge or magistrate in Malta who can ever be trusted to hear any case at all.

Let’s face it: everybody here has been to school with everybody’s dog. The school I went to (De La Salle College, if you must know) had a student population of around 1,600, hailing from all walks of life, and every nook and cranny of the island. It wouldn’t surprise me in the slightest, if that spotty little kid I shared a desk with in Form 3 went on to become a judge or a magistrate... or, for that matter, a police inspector. And heck, I might even have wished him Happy Birthday on Facebook a couple of times over the years. Does that mean he can never sit in judgment on me in a Maltese court of law?

If so... well, one thing’s for certain. If I ever find myself in front of a magistrate or judge on criminal charges, the first thing I’ll get my lawyer to do is scour the world wide web for evidence of shared schooldays, or any form of online social interaction whatsoever. And if it turns out that the judge or magistrate had ever once said so much as a ‘good morning’ to anyone involved in my case... that’s it; I’m filing a recusal request. After all, that’s what seems to have happened here. I fail to see why it shouldn’t happen all the time...