The complaint by former Opposition Leader Simon Busuttil could not be heard by a judge whose wife – Labour MEP Marlene Mizzi – referred to him as a “loo” on Facebook, defence lawyer Jason Azzopardi said.

Azzopardi was making his arguments before Chief Justice Joseph Azzopardi, Judge Noel Cuschieri and Judge Giannino Caruana Demajo during an appeal hearing filed by the Attorney General.

The Attorney General is contesting a judgment by Judge Joseph Zammit Mckeon who had ruled that Judge Antonio Mizzi’s refusal to recuse himself from a complaint on Panama Papers breached Busuttil’s right to a fair hearing due his wife being an MEP, creating a conflict of interest.

In the original judgment, the court said that the decision taken by Judge Mizzi on the complaint, which had been filed by Busuttil, had to be revoked. 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.

Mizzi had hit out against Busuttil on Facebook, even calling him “LOO”, an acronym for Leader of the Opposition but also slang word for toilet.

In her arguments, lawyer Victoria Buttigieg from the office of the Attorney General said that this was not a case of a person being attacked or accused. For someone to file a constitutional application, one has to be a victim – whether directly or indirectly but this was not the case.

There was also the presumption of impartiality when a judge took an oath upon taking office, Buttigieg said. “We are talking here about the behaviour of a third person – they (Judge Mizzi and MEP Mizzi) are two different people.”

There was no evidence to prove that he repeated or said something his wife said and one could not attribute what the politician said to the judge, Buttigieg added.

Also, the role of the inquiring magistrate is not to state whether a person is guilty or not but to collect and preserve evidence, she said.

Defence lawyer Ian Refalo, who is appearing for Hillman, said his client should not be involved in any request made by Busuttil for compensation and argued that one had to make a difference between interest and opinion.

Refalo said that Busuttil’s arguments to recuse Mizzi did not make sense as they were saying justice could only be done if they chose the judge themselves. “If that is the case, then goodbye rule of law, good by everything”.

However, Azzopardi stressed that it was not a question of Judge Mizzi’s integrity. The argument was all about being impartial and being seen as impartial. “Marlene Mizzi could not have spoken at all – it is not the reason why we are here. It is an added reason but not the main reason”.

Mizzi was on the Labour Party ticket and was bound to them out of loyalty. Her “superior” would end up testifying before her own husband, Azzopardi told the court.

He referred to the fact that, almost one year ago, Judge Consuelo Scerri Herrera had abstained from the role of duty magistrate when journalist Daphne Caruana Galizia was murdered after the Caruana Galizia family had filed a request in court.

He also pointed out that Judge Edwina Grima had never heard any cases related to hunting or the Administrative Law Enforcement Unit because someone close to her was involved with Birdlife. “She did this herself,” Azzopardi said.

He also listed a number of European court judgments to show that the definition of a victim had been widened.

Judgment was deferred to October 29.