Constitutional court orders judge’s recusal in clerical sex abuse compensation case

By Matthew Agius
Malta Today
March 7, 2017

http://www.maltatoday.com.mt/news/court_and_police/75099/constitutional_court_orders_judges_recusal_in_clerical_sex_abuse_compensation_case#.WL6jyDvysdU

When this case was allotted to judge Joseph R. Micallef, the victims had asked him to recuse himself, citing the judge's connections to the Church

A new judge will be assigned to the case of 10 victims of clerical sex abuse after a court upheld the appeal and declared that the men would suffer a breach of their right to a fair hearing if the judge currently presiding over the case failed to recuse himself

The Constitutional Court has effectively ordered the recusal of a judge hearing a claim for damages by 10 victims of clerical sex abuse, saying the victims’ fears that the sitting judge's involvement in Church-related organisations objectively justified their fears of bias.

Former residents at the Missionary Society of St Paul's St Joseph Home in Hamrun, Lawrence Grech, Joseph Magro, Leonard Camilleri, David Cassar, Noel Dimech, Angelo Spiteri, Raymond Azzopardi, Charles Falzon, Philip Cauchi and Joseph Mangion had filed a claim for damages against the Missionary Society of St Paul following the 2012 conviction of defrocked Missionary Society of St Paul priests Fr Charles Pulis and Fr Godwin Scerri. Pulis and Scerri were sentenced to five and six years’ imprisonment respectively for sexually abusing a number of boys in their care.

When this case was allotted to judge Joseph R. Micallef, the victims had asked him to recuse himself, citing the judge's connections to the Church as President of a foundation which runs Catholic radio station Radju Marija.

But Mr Justice Micallef had been of the opinion that the rules regulating recusal in the Code of Organisation and Civil Procedure precluded him from abstaining from hearing the case and that he was therefore obliged to hear it.

The victims had filed constitutional proceedings after the judge had refused to step down, claiming their right to a fair hearing would be breached if he decided their claim.

In April last year, the First Hall of the Civil Court in its constitutional jurisdiction, with judge Mark Chetcuti presiding, had decided against the men, who then appealed to the Constitutional Court.

In its decision handed down today, the Constitutional Court, composed of Chief Justice Silvio Camilleri, Judge Giannino Caruana Demajo and judge Noel Cuschieri, overturned the First Hall's judgement.

The three judges noted that a judge's refusal to recuse himself because of fears as to his impartiality is not, in itself, an indicator of partiality. “Neither is it true that because a judge lives his faith ‘publicly and actively', this would give rise to 'dubious circumstances;' a judge is not required to live his faith in the catacombs in order to be seen as objectively impartial.”

It noted that “from the constitutional perspective, however, other considerations apply” to Mr Justice Micallef's decision not to recuse himself. These considerations included looking at whether there was an objective justification to the fears of partiality or impartiality of a judge. The determining criteria, the court said, was whether this fear or that perception was based on objective considerations that any reasonable, unprejudiced, person would arrive at. The court said that the case before it rested on the existence or otherwise of these objective reasons.

Although there were no strict, hierarchical ties between the Archdiocese and the radio station, the court said that the perception of close ties between them was “not an entirely stretched one.”

“This perception springs from the objective fact that the [radio station's] director of programming must always be a cleric, when seen that the same director had stated that if he “sang out of key,” he would be sent for by the Archbishop and taking into account the fact that the Provincial of the Dominican order had the power to demand the resignation of said director.

“It is true that there is a distinction between the role of the director of programming and the president of the association, but both have a leading role in the management of the same.”

The court held that the perception of ties between the Archdiocese and the association was “not unreasonable and that this could negatively affect the appearance of objective impartiality. The doubt [as to objective impartiality] is objectively justified, even if this doubt doesn't strike at the subjective impartiality of the judge.”

The court upheld the appeal and declared that the men would suffer a breach of their right to a fair hearing if Mr Justice Micallef failed to recuse himself. 

The case will now be assigned to another judge.