Simon Busuttil wins case on recusal of Judge Antonio Mizzi

Judge Antonio Mizzi’s refusal to recuse himself from a complaint on Panama Papers breached former Opposition leader Simon Busuttil’s right to a fair hearing due his wife being an MEP, creating a conflict of interest, a constitutional court ruled.

The decision taken by Judge Mizzi on the complaint, which had been filed by Busuttil, had to be revoked, Judge Joseph Zammit Mckeon said in his judgement.

The conflict of interest arose because his wife, MEP Marlene Mizzi, had spoken about the Panama Papers in the European Parliament, “as was her legitimate right”.

Busuttil’s complaint came after Prime Minister Joseph Muscat, his Chief of Staff Keith Schembri and Tourism Minister Konrad Mizzi, their auditors Brian Tonna, Karl Cini, Malcolm Scerri, and the former Managing Director of Allied Newspapers Adrian Hillman had each filed separate appeals against a magisterial decision to green light an inquiry in their regard. These were assigned to Judge Mizzi.

Busuttil challenged Judge Mizzi to recuse himself but he refused, and the former Opposition Leader then took the case to the constitutional court.

In his judgment, Judge Zammit McKeon pointed out that the fact – in isolation – that Judge Mizzi was married to a Labour MEP did not constitute a risk of impartiality.

He referred to comments made by the MEP on the Panama Papers in European Parliament in June 2017  – a month before the case was assigned to her husband.. However, these public declarations, together with the fact that she was Judge Mizzi’s wife – should have led to him abstaining from the appeals as the “matrimonial link between the two was now creating a grave risk of impartiality” and a violation of Busuttil’s right to a fair hearing.

In his arguments, Busuttil had pointed out that Mizzi had abstained himself in two similar cases. The first was related to a court case filed by the police against journalist Daphne Caruana Galizia, who was murdered on 16 October 2017, where Mizzi had abstained because his wife had been mentioned Caruana Galizia’s blogs.

In a separate case, he had recused himself from a case where then Chief Justice Vincent De Gaetano was acting as parte civile in a police case as Mizzi was under investigation by the Commission for the Administration of Justice for the alleged breach of code of ethics. At that time, Mizzi was the president of the Malta Basketball Association and De Gaetano was the commission’s vice-president.

Zammit Mckeon pointed out that had Mizzi abstained, especially after his wife’s speech, he would have clearly put aside – even in the best interest for the administration of justice – any shred or semblance of doubt about decisions related to this case.

Zammit McKeon upheld a request by Busuttil to have the appeals assigned to another judge, and that they should be concluded as a matter or urgency.

Following the judgment, Busuttil tweeted: “This is one giant leap for justice. But we have a right to justice. We shouldn’t be struggling for it”.

Dr Jason Azzopardi signed the application.