Judge Edwina Grima refuses to recuse herself in the trial by jury of Yorgen Fenech: the arguments in favour and against

Yorgen Fenech’s defence team asked Madame Justice Edwina Grima to recuse herself from presiding over the jury case of Yorgen Fenech. The Deputy Advocate of the Republic of Malta, Philip Galea Farrugia, strongly wanted her to remain. Edwina Grima did not accept the defence’s submission and thus she will be the judge overseeing the trial by jury in Fenech’s case.

However, from the Times of Malta’s report, a detail came out that I confess I did not know. In their petition, the defence lawyers stated that one of the reasons why the judge should recuse herself is prompted by the fact that the Office of the Advocate General was involved in her appointment.

From his end, Deputy Advocate General Philip Galea Farrugia described the defence’s arguments as conjectures. He did not deny being involved but said that the Advocate General is there solely to ensure that the correct procedure is followed and nothing more.

I believe that this case is open to a serious debate on criminal law procedure in our country. This debate has to be held irrespective of the case before us meaning that of Yorgen Fenech’s trial by jury.

First, this case has brought to the fore that the Office of the Advocate General has far more power than that of the defence lawyers. According to Fenech’s defence lawyers, the Advocate General was involved in picking the judge while those of the defence were not. Irrespective of the case per se, the fact that an Advocate of the Republic was or is in some way involved in selecting a judge clearly constitutes a conflict of interest in our courts. 

Secondly, this goes against what the Venice Commission recommended. In fact, the Venice Commission had recommended the split the Office of the Advocate of the Republic into two and, on the recommendation of the Venice Commission, the office of the State Advocate was set up. Therefore, a question arises. Why for the selection process was the presence of the Office of the Advocate General required and not that of the Office of the State Advocate?

This factor is already going to place the judge in this jury, or any other juries that could find themselves in a similar situation, in a bad light. There cannot be a shred of doubt regarding the selection of a judge. In this case, the doubt exists because in some form or other the Office of the Advocate of the Republic, who is also the prosecutor, was involved when today this doubt could have been dismissed had the Office of the State Advocate been involved in the selection process.

Why should it be left to the Office of the Advocate General of the Republic to oversee the selection process when such involvement constitutes a conflict of interest?

For this reason, it has to be clear that who oversees the selection of the judge cannot be an official from the Office of the Advocate General. Let’s take a look at the selection had it been made by the Office of the State Advocate. One could argue that the person involved was not from the same office and is not engaged in criminal prosecution proceedings in Court. This not only would eliminate any conflict of interest but would show impartiality in the selection process.

One should remember that it is the Caruana Galizias and their family lawyer Jason Azzopardi, who initiated the system of objecting to the choice of magistrates and judges submitting reasons not envisaged in the laws of the land but based on any criticism Daphne Caruana Galizia could have levelled against a magistrate or judge or those individuals closely related to them. This is because the Caruana Galizias have a vested interest to ensure that certain individuals would not be involved in the case.     

In this case, the judge chose not to recuse herself. That is her choice. I will not comment. However, following her decision, there is now this black shadow.

That the office of the Advocate General interferes – whether it is through choice, as Yorgen Fenech’s defence lawyers have argued, or because according to law this office is vested with the responsibility to see that the process was going well as Philip Galea Farrugia maintained – this should not happen. The Office of the Advocate General should not have any part to play in this selection procedure.

There cannot be the least suspicion among the general public that some member from this Office prefers one judge to another to preside a jury case irrespective of the case. Hence, I insist that this Office must not even have the faculty to verify and oversee the selection process in picking a jury judge.

On 18th December 2019, the Office of the State Advocate was established in terms of Art. 19A “as the principal adviser to Government on matters of law and legal opinion. It is tasked to act in the public interest and to safeguard the legality of State action.”  Therefore, I reiterate that this procedure has to be seen by the State Advocate and not by the Office of the Public Prosecution in order to safeguard the legality of state action. From the manner that same Deputy Advocate General, Philip Galea Farrugia, described this procedure in Court, he demonstrates that the presence of the Office of the Advocate of the Republic was merely an administrative function and nothing more.

Therefore, why was the selection not made by the State Advocate? What interest does the Office of the Advocate General have to remain forming part of the selection process of a jury judge? After the Offices were split into two separate entities, his office should have no interest to form part of the selection process of a jury judge. The fact that this Office does, confirms what the Fenech’s defence lawyers maintain that the Office of the Advocate General has a say in the selection of judges presiding a jury case! Thus, there is a mechanism in our judicial system that potentially can be used by the Public Prosecutor to his advantage. Yorgen Fenech’s jury has brought to the fore a legal precedent which rather sooner than later must be rectified if a modicum of impartiality and fairness is to be maintained in our Courts.