Justice, against all odds

In court last Tuesday, with a few minutes at a loose end, I thought I should listen to an interesting case.  One presented itself on a plate – the Constitutional Court hearing in the matter of Simon Busuttil vs the Establishment, not its formal name, but one that will work as well.

In a nutshell, Busuttil is asking the court to declare that the failure of Justice Antonio Mizzi to recuse himself in the matter of the appeal entered by the Prime Minister et al against the decision by the Magistrates’ Court to forge ahead with a criminal inquiry is contrary to the right of fair hearing enjoyed by Busuttil.

This plea by Busuttil is based on the fact that Justice Mizzi is married to Labour MEP Marlene Mizzi, who has never been reticent in expressing her disgust at the way the PN MEPs have acted in the European Parliament in connection with the smears of corruption cast on her government by the Panama Papers and other revelations that have been published.

Justice Mizzi decided that he is not his wife’s keeper (again, not in so many words) and therefore there was no reason to recuse himself.  At strict law, he might be right, but he’s skating a pretty thin line, to my mind, because the overriding principle is that justice must not only be done, it must also – in fact, more importantly in this era – be seen to be done, and the extent to which it can be seen to be done is debatable to put it mildly, given the circumstances.

After all, another member of the judiciary recused herself in circumstances of infinitely less affinity with a party to the case, rather tending to show up Justice Mizzi’s position.  Those of us with a forensic memory that goes back more than a few years also recall how many judges had eagerly side-stepped their responsibilities in the cases relating to Mintoff and KMB’s attacks on private and Church schools, again in circumstances much less impelling than those surrounding Justice Mizzi.

That all being as it may be, Busuttil now finds himself ranged against something in the order of 10 lawyers, all hell bent on making sure that his continued efforts to cast some light on the nefarious activities of certain elements of society fail before they even gain traction.

How different this reality is from Joseph Muscat’s continued assertions that he wants full and transparent scrutiny on the workings of his government.

It is also somewhat perplexing that the former PN Leader is standing alone in this fight with his lawyer Jason Azzopardi, while the PN machine seems to be more concerned with going about smiling positively and grinning broadly while hanging up enormous portraits of the Leader.

It is not my place to concern myself with the policies of the PN, and if they choose to try to erase Busuttil and his sterling work from the collective memory, then that is their right – if by that they erase themselves from my memory, well, that is my right.

The hearing yesterday concerned itself, by and large, with the preliminary pleas raised by the defence (a defence packed with all the potential targets of the proposed criminal inquiry, for all the world as if it’s normal for the gamekeeper, the Attorney General in this instance, to recruit the alleged poachers to help him out).

Such pleas, which legal beagles identify between themselves as “getting your retaliation in first”, are designed to bring proceedings to a grinding halt before the merits are aired.

The judge nixed that tactic pretty quickly by deciding that he would be giving one single judgement that would cover everything.

Barely able to hide their disappointment, the defence team then proceeded to try to limit the sort of evidence that Busuttil would be allowed to produce, in the words of one of them “in order not to allow the plaintiff to achieve his political aims”.

One wonders why there is such an allergy to the evidence being produced, to the extent that it is characterised by slurs of “politicisation”, which in itself is rich coming as it did from one of the most astute political operators in the legal profession.

After quite a bit of debate, the judge decided that Busuttil should, as he (Busuttil) was requesting, indeed produce all relevant documentary and other evidence that would help the court come to a decision.  He was exempted from producing Justice Mizzi’s marriage certificate proving he was married to a Labour MEP, as all parties agreed that in fact, they were joined in matrimony – it was about the only thing that was agreed on all sides.

The way other media reported this hearing, you would be forgiven for thinking that Busuttil had been ordered by the court to produce evidence that he was reluctant to produce. In reality, the court upheld his request to produce evidence in the face of the objections from the defence, which is another kettle of fish altogether and then some.

It would have been more appropriate, perhaps, if the headline had been “Establishment lawyer accuses Simon Busuttil of harming the country’s institutions”, which was the gist of a crack made by the same lawyer who had demonstrated such a sudden allergy to politics.

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