A Constitutional court has been asked to provide a remedy to a man who is claiming that the fact that lawyer Pawlu Lia, who serves on the judiciary watchdog the Commission for the Administration of Justice, is opposing counsel in a civil suit breaches his right to a fair hearing.
In what will potentially open the floodgates to many more cases of this nature, Geoffrey Borg, who is a party to an ongoing civil case over a property dispute, filed the Constitutional case this morning. Borg is complaining that the lawyer for the defendant, lawyer Pawlu Lia, is also a member of the Commission for the Administration of Justice, the functions of which include disciplining members of the judiciary, amongst other things. Lia was also former Prime Minister Joseph Muscat’s personal lawyer.
This could potentially place the judge hearing his case in a compromised position, especially if they happen to be undergoing disciplinary proceedings before the Commission, Borg’s lawyers – Franco Debono, Michael Tanti Dougall and Amadeus Cachia – argue.
The Commission for the Administration of Justice is composed of the President of the Republic, the Chief Justice, the Attorney General, two judges and two magistrates, the President of the Chamber of Advocates, as well as two members appointed by the Prime Minister and the Leader of the Opposition, respectively. One of its functions is enforcing discipline on the judiciary.
In the court application filed today, the lawyers argued that Lia’s position gave him powers similar to those of a judge, including passing judgment on the judge hearing the case at hand. In fact “it places him in a position to potentially pass judgment on the judge or judges who are currently hearing, or will hear in future, this Constitutional complaint itself,” they said.
“In addition, the plaintiff has no means of finding out whether a judge or magistrate had appeared, is appearing, or will appear before the Commission for the Administration of Justice, of which Dr. Pawlu Lia is a member, because [the Constitution states] that disciplinary proceedings for the judiciary are to be held behind closed doors.”
This state of fact placed the plaintiff at an “enormous” disadvantage and could cause undue pressure and conditioning on the Court such that the constitutional requirement for a fair hearing by an independent and impartial tribunal would not be satisfied, added the lawyers, quoting at length from local and European case law on the impartiality of judges and magistrates and the related tests of subjectivity and objectivity.
Borg therefore requested the First Hall of the Civil Court in its Constitutional jurisdiction to declare a breach of his fundamental right to a fair hearing before an independent and impartial tribunal and provide an adequate remedy in the circumstances.
Original article found on The Malta Independent