Court strikes down Law Commissioner Antonio Mizzi’s ‘irregular’ development permit

The Appeals Court, presided over by Chief Justice Mark Chetcuti, has struck down an ‘irregular’ development permit issued to former Judge and current Law Commissioner Antonio Mizzi to extend his villa’s garage in Rabat.

In an unusual court case, the Planning Authority (PA) contested the permit it had already refused outright, but which was ‘somehow’ turned by the Environment and Planning Review Tribunal (EPRT) – a form of semi-judicial appeals board within the planning law regime.

After hearing the case, the Court decided that the PA was completely right when it originally refused to issue the permit, and that the government-appointed EPRT, which overturned the PA’s decision and gave Judge Mizzi the ‘go-ahead’, interpreted the policies incorrectly to be able to change a ‘refuse’ decision into a ‘grant’.

From ‘no’ to ‘yes’

The case goes back to 2020 when through his architect, Labour government consultant Robert Musumeci, the former Judge and his wife, former Labour MEP Marlene Mizzi, applied for an extension of their villa’s garage, situated in Rabat’s Tal-Virtu’.

In its report, the PA recommended an outright refusal, insisting that the proposed development, which also altered the façade of the house, was not permissible in the area in which their home is located.

According to the PA, the development application breached several policies, including technical ones, and thus was unacceptable.

As a result, the PA’s commission presided by Simon Saliba, later removed by the government, refused to issue the permit, with all three members voting against.

Mizzi immediately filed an appeal to the Environment and Planning Review Tribunal (EPRT).

Once again using the services of Musumeci, this time in his capacity as a lawyer, Mizzi argued that the PA was wrong and that his requested permit should be issued.

In what planners describe as “a very strange decision”, the EPRT, chaired by a PA employee, Joe Borg, decided to uphold Mizzi’s arguments, overturning the PA’s original decision and ordering the Authority to issue Mizzi with a permit.

The PA judged this decision to be unfounded and challenged the EPRT in court. The Chief Justice has now decided that the PA was right in its original refusal, and revoked Mizzi’s permit.

Judge Mizzi and the law

Judge Antonio Mizzi, who retired from the Bench at the end of 2018, has had a colourful history when it comes to obeying rules.

He spent most of his career in the judiciary as a magistrate, after having refused to step down as President of the Malta Basketball Association, though the judiciary’s code of ethics precludes members from holding such positions.

In 2007 he was reprimanded by the Commission for the Administration of Justice – the judiciary’s watchdog – and was ordered to relinquish his post in the sports association.

Mizzi failed to do so, which meant he couldn’t be promoted to Judge. Yet this changed immediately after the general election that brought the PL into power in 2013, and Mizzi was the first on Labour’s list to be given a promotion. 

Then-Justice Minister Owen Bonnici justified the government’s move, arguing that Mizzi was not involved in the sports organisation any longer.

Later, Mizzi was touted as one of the administration’s preferred candidates for the post of Chief Justice, but he reached retirement age before there was a vacancy.

Six months after he retired, Mizzi was appointed to a new post as Law Commissioner, for which he receives remuneration from the public purse, on top of his lucrative pension as a former Judge. 

Shortly after he retired, Mizzi also hit the headlines when he refused to recuse himself from a case he was assigned, to decide on whether a magisterial inquiry was to be held involving Keith Schembri – ex-chief of staff to disgraced former Prime Minister Joseph Muscat – and Adrian Hillman, the Times of Malta’s former managing director, now accused of bribery and corruption.

While then-Opposition leader Simon Busuttil, who filed the case, had asked for Mizzi’s recusal, because of his wife’s position as a Labour MEP, the Judge refused. 

Later, the Constitutional Court ordered Mizzi to turn over the case to another member of the judiciary, following another challenge by Busuttil.

Last year, during the compilation of evidence against one of assassinated journalist Daphne Caruana Galizia’s alleged murderers, Yorgen Fenech, state witness Melvin Theuma told the court, under oath, that “Keith Schembri, at the prime minister’s (Joseph Muscat) behest, had approached former Judge Antonio Mizzi to arrange for bail to be given” to the three accused triggermen of the car bomb that killed Caruana Galizia.

The former Judge later denied the claims.

A call for an investigation by independent candidate Arnold Cassola asking the Commission for the Administration of Justice to look into these claims was met with a public outburst by Judge Mizzi’s wife, Marlene, who called Cassola a “failed loser” and a reject.