In the series of online lectures on administrative law that I am currently publishing, bias is addressed as a component of the lectures on natural justice. Nonetheless, this particular lecture does not delve into the topic of judges determining whether or not to recuse themselves, as my emphasis primarily lies on executive decisions.
Recently, this issue has gained prominence as a group of lawyers has raised challenges regarding it. The underlying logic is straightforward. The argument posits that in order to maintain public confidence in the integrity of the judicial system, it is preferable, whenever logistically possible, to have another judge preside over recusal motions. This is due to concerns regarding the appearance of partiality and the potential for self-serving interpretations of statutes.
Nonetheless, the prevailing practice of judges making decisions regarding their own recusal has persisted for years. One rationale for this practice is rooted in the belief that judges possess complete awareness of their own thoughts and emotions. This perspective finds support in the notion that the Maltese legal system has mandated for years that each judge independently evaluate their ability to impartially preside over a case, guided by their conscience.
The presumption underlying this approach is that a judge, bound by their solemn duty to administer fair justice, is not inclined towards bias or favouritism. Thus, if a judge is confident in their ability to fairly and impartially handle a case, their decision stands as final.
Hence, there exists a reasoned justification for judges to personally determine their recusal, and this rationale is not without basis.
The question of whether it is appropriate to explore alternative approaches, however, could be addressed through clarification from the constitutional court or, alternatively, the legislature could examine the possibility of amending the code of civil procedure.
Until that moment, it is incumbent upon us to maintain the belief that when a judge swears to uphold the constitution, it signifies a dedication to impartiality irrespective of personal unease or conscience. This is the manner in which it ought to be.
