JAC should have known of nominated magistrate’s criminal charges

The Judicial Appointments Committee seems to have found a solution to the conundrum it found itself in last week when one of the four candidates it approved for the Bench turned out to be facing criminal charges, as the original four magistrates are set to take their oaths later this afternoon.

The Shift last Friday revealed that the swearing-in ceremony of the four new magistrates the JAC approved for the Bench was suddenly called off on the same day when attention was drawn to the fact that one of the candidates it approved, Kevan Azzopardi, is currently facing criminal charges in a foreign jurisdiction.

While there has been no explanation from the JAC, it transpires from the Committee’s own rules and regulations, as well as documentation candidates are required to submit, that it should have known full well about the situation Azzopardi was facing but chose to ignore it. Either that or Azzopardi had concealed the criminal proceedings he is undergoing from the Committee by failing to report them.

The oath-taking ceremony has now been reserved for 5pm this afternoon, and The Shift is reliably informed that all four of the magistrates nominated by the Committee, Azzopardi included, will be sworn in.

The Shift reported last week that Azzopardi is facing criminal charges in the Ivory Coast – in connection with his former role as an Official Receiver for the Malta Business Registry – that have been instituted against him by Pefaco International, and in which he is also being held personally responsible for €750,000 in damages.

The case against Azzopardi was instituted in the Ivory Coast in February 2022, and it was also raised recently in an ongoing court case in Malta.

Candidates must declare any criminal charges faced

According to a questionnaire candidates need to fill out as well as its own rules, regulations and guidelines governing the selection process, the Judicial Appointments Committee must be informed of any criminal charges candidates are facing.

As such, the JAC must have been aware of Azzopardi’s predicament. Either they knew and ignored it, or Azzopardi failed to declare it.

In its Guidance Note on the ‘Good Character – Suitability and Integrity’ section, the JAC states very clearly: “You must declare information about any criminal charges you are subject to, or any ongoing criminal investigation into your conduct.”

The JAC has, however, also allowed itself a certain amount of leeway in the decision, with the rules also stipulating, “Depending on the particular circumstances of the investigation, your application may be allowed to proceed.

“However, it is unlikely that you will be recommended for judicial appointment until the outcome of the investigation is known.”

Those same rules, however, list “any current or past civil or criminal actions involving the candidate” as only being a “potential impediment to appointment”.

But perhaps an explanation for last week’s antics that saw the announcement of the oath-taking ceremony only for it to have been cancelled shortly afterwards may very well lie in the JAC’s own rules and guidelines, which were approved on 10 November 2020 and which detail the process when an impediment to an appointment is raised.

Those rules and regulations, as well as the Ethical Guidelines for JAC members, state that when a Judicial Appointments Committee member “learns of information that would render a candidate ineligible for appointment under the provisions of article 96B(2) of the Constitution or concerning any criminal or other offences…involving a candidate [they] must immediately advise the Committee and the Secretary.” The Committee’s secretary is former Court Services Agency chief executive Frank Mercieca.

But, in the case of an “emergency”, which last week’s instance presumably was given the ceremony’s 11th-hour cancellation, the member must advise the Committee Chair and seek guidance on “the appropriate investigations to be undertaken”.

The rules binding the JAC state that “information of this nature, whether it relates to past or current conduct, must be closely reviewed by the Committee.

“Care must be taken to ensure this review is comprehensive and based on information which is reliable.”

The disclosure requirement applies whether the information relates to a candidate to be evaluated or one who has already been evaluated.

This could suggest that a JAC member only learned of the charges against Azzopardi on the day he was to be sworn in, implying that they had not been addressed by Azzopardi in his questionnaire. It could also suggest a third party raised the information with a Committee member on the day of the appointments.

In addition to Azzopardi, lawyers Gianella Camilleri Busuttil, Abigail Critien, and Joseph Gatt are to be sworn in this afternoon.