Judge abstains from Repubblika case over magistrate’s recusal

The judge presiding over Repubblika’s Constitutional case over a magistrate’s refusal to recuse herself has this morning abstained from presiding over the case, following yesterday’s Constitutional Court decision.

In a decree delivered in chambers this morning, Mr. Justice Ian Spiteri Bailey, observed that what the Constitutional Court had said in its ruling “could be understood to mean that this court, as presided, has already granted an effective and definitive remedy prematurely before hearing of the case on the merits, expressed its opinion on the merits in an early stage of proceedings and that it could have been mistaken in having done so.” 

“This [decision] places a burden on this court, as presided, and that which the Constitutional Court said cannot pass un-noted, and above all, must be respected.”

Spiteri Bailey, after examining the relative articles of the Code of Organisation and Civil Procedure, noted that a judge may recuse himself or abstain from presiding further in cases which had already been decided by him under article 734(1)(d)(ii) which states “But this does not apply to a decision, given by a judge, when the merits of the dispute between the parties has been definitively decided…”

“It is true that the decision in parte given by this court on 19 October 2022 did not definitively decide the merits of the issue between the parties, so much so that the Constitutional Court sent the acts back precisely so this can happen. That was a decision in parte and the court there made it clear that it was not ruling on the merits in [that decision].”

“But in spite of all this, this court, as presided, feels that the expression by the Constitutional Court to the effect that this court’s decision of the 19 October 2022, had led to the effective granting of the remedy requested… as well as that this was done before this court heart the case on the merits… places a greater burden on the presiding judge, who must ensure that justice is not only done, but must also be seen to be done and ensure that he himself also acts with integrity as is expected of him.”

Stressing that it was not a decision he was taking lightly, the judge noted that the reasoning he had used in the October ruling also applied to him and that it “certainly would be fitting, in the best interest of transparency and justice, which justice must not only be done, but must also be seen to be done throughout the course of the judicial process, that this judge abstain from these proceedings.”

The judge said that he had thought long and hard about his abstention and at the same time had to avoid wasting time due to the urgency with which the case must be heard. “In honour of integrity, the presiding judge feels that the truth requires him to abstain from continuing to hear the present case,” Spiteri Bailey ruled.

Notably, the judge signed off on his decree with a pointed quote from the 2007 Commentary on the Bangalore Principles of Judicial Conduct, published by the Judicial Integrity Group. 

“Integrity is the attribute of rectitude and righteousness. The components of integrity are honesty and judicial morality. A judge should always, not only in the discharge of official duties, act honourably and in a manner befitting the judicial office, and be free from fraud, deceit and falsehood, and be good and virtuous in behaviour and in character. There are no degrees of integrity as so defined. Integrity is absolute. In the judiciary, integrity is more than a virtue; it is a necessity.”