Some weeks ago, a constitutional court was confronted with two versions of a single set of facts. One of the versions was expressed in a magistrate’s decree and the other contrasting version of the same facts was given to the upper court by one of the parties appearing before the same magistrate in a lower court.
You will remember this. Magistrate Nadine Lia said in a decree that she had ruled, in a hearing of a case brought by Repubblika against the police commissioner, after nobody representing Repubblika asked to speak to the court. But Repubblika’s lawyer said the magistrate had ignored his entreaty to speak while Nadine Lia stormed out of her own court. This latter version of events was backed up by several newspaper reports written by journalists who were in the courtroom at the time.
Judge Ian Spiteri Bailey had to decide between two versions of a series of facts that contradicted each other. Apart from the fact that we knew we were saying the truth and the account given by several independent witnesses comforted us that our memory was correct, it was still objectively stunning to hear a judge openly dismiss a magistrate’s version of events.
Now that was part of Judge Ian Spiteri Bailey’s decision to back Repubblika’s request to have Nadine Lia, daughter in law of Pawlu Lia, Joseph Muscat’s lawyer in the Pilatus case which was just the case that Repubblika was challenging the police commissioner over, removed from hearing the case. The judge took that decision as a temporary measure pending his final determination on whether Repubblika’s human rights were breached by Nadine Lia’s previous refusals to recuse herself from hearing the case.
The temporary measure was an order to the court registrar to pass the case to another magistrate.
In the meantime, the state advocate asked the court for leave to appeal its decision. That wasn’t a problem for Repubblika. What was a problem was the state advocate’s request for the court’s interim order to take the case away from Nadine Lia to be suspended. In a way the state seemed to sympathise with our concern that Nadine Lia would continue to hear the case while a higher court was examining whether our human rights were being breached by that very same fact. They agreed with us that proceedings in front of Nadine Lia should stop. They did not agree with the court that the case should start being heard by someone else while the matter was decided.
That’s what the court was meant to rule on today. Can the state advocate appeal? And should the court’s order to have another magistrate assigned to the case be reversed?
Judge Ian Spiteri Bailey gave the state advocate leave to appeal.
The real meat of the issue was over the second question. The judge had much to say on that.
First he criticised the administration of the court for taking its time with implementing the order the court had given for the case to go to another magistrate. The government cannot take its time to wonder if it wants to implement an interim order by the constitutional court. These orders, rare as they are, are meant to protect individuals from a grave risk of having their rights breached by the government’s actions or by the government’s failure to act.
The only reason the court was being asked to consider reversing an order it had given, the court pointed out today, was that its order was ignored in the first place.
The court had words for Nadine Lia as well. When the state advocate asked the court for leave to appeal its decision to have Nadine Lia taken off the case, the court noted the agreement between the state advocate and Repubblika that until a decision on the appeal was taken proceedings in front of Nadine Lia should not continue.
Nadine Lia issued a decree in reaction to that. Well ahead of you, the magistrate told the judge. She said, referring to an earlier decree she said she issued, that she had already decided not to continue hearing the case pending a decision on the appeal on the decision to remove her.
The court was “perplexed”. That’s the judge’s word, not mine. Why were the state advocate and Repubblika in the upper court’s presence agreeing to ask the lower court to stop hearing the case when the lower court had already told them it would do just what they were planning to ask her? Judge Ian Spiteri Bailey said that in view of his perplexity he checked the record of Nadine Lia’s court and found that she had never made such a decree.
Pause here for three seconds to take that in. I’ll come back to the point after I tell you that the judge rejected the state advocate’s request to reverse his interim order and confirmed his order to the court administration to take the matter off Nadine Lia’s hands and assign a new magistrate to hear the Pilatus challenge to the police commissioner brought by Repubblika.
OK, now back to the point where for a second time the upper court found that Nadine Lia had volunteered a version of facts that was not consistent with the verifiable record. The first time – the bit about whether it had been true that she had or hadn’t ignored Repubblika’s pleas to argue in front of her – was a decision by Ian Spiteri Bailey to reject her version and choose a version backed up by other witnesses to the events.
This time it’s different. Judge Ian Spiteri Bailey checked something that Magistrate Nadine Lia had told him and found it wasn’t true.
The first case exposed doubts in Nadine Lia’s credibility. This case confirms she’s a liar.
After the first case Repubblika suggested Nadine Lia should seriously consider her position as a magistrate. It’s now beyond that. It’s now come to the point where the only constitutional entity with the power to remove her, Parliament, has the duty to impeach her and kick her out.
Of course, we know that won’t happen. If Nadine Lia has a conflict of interest because her father-in-law is Joseph Muscat’s lawyer, representing a client with every imaginable motivation to keep the case against Pilatus buried in sand, the Parliamentary majority held by the Labour Party is at least just as conflicted. They are, to a man, from Robert Abela down to Glenn Bedingfield, utterly motivated to prevent the truth about Pilatus Bank from coming out. The truth about Pilatus Bank is not merely a risk to Joseph Muscat’s legal position, it is a risk to the Labour Party’s very viability.
And therein you see why this is important. This is not about a magistrate caught in a lie or two, though of course it is certainly that. This is about the way partisan politics is frustrating the very functioning of justice in this country.
Perhaps this helps explain why we do this. Our arguments expose this reality but do not create it. The inherent injustices that we expose are there for anyone seeking redress from the court in a matter that is against the interest of the criminals in public office to be made the victim of.