One of the two hijackers who forced an Afriqiyah Airline Airbus 320 to come to Malta before Christmas 2016 has been granted bail.

The hijackers, Soko Moussa Shaha Ali and Ali Ahmed Saled, were pro-Gaddafi loyalists on an internal flight after which they surrendered on Maltese soil without any injuries on board.

The plane had 109 passengers and seven crew members on board, and the hijackers threatened to blow up the plane in spite of them only having fake weapons available.

Provided that he could adequately guarantee the observance of bail conditions, Moussa's lawyer argued that his client was entitled to release from preventive arrest in terms of law through an application filed last week.

Furthermore, once the maximum term of preventive arrest envisaged by law had run its course, the court was bound to grant bail.

The Office of the Attorney General replied to the request by pointing out that Moussa had been the mastermind behind the attack and the one who had played a major role in the hijack, as well as failing to satisfy the requisites for bail as expressly laid down by law.

Apart from the court needing to protect society at large, he had no ties in Malta, no fixed address and lacked financial means, which could all lead to absconding.

The court decided that in terms of the current provisions on bail as laid down under the Criminal Code, the court "must" rather than "may" grant bail once the maximum term of preventive arrest had expired.

Where the crime was liable to a term of imprisonment exceeding 15 years, bail was to be granted "upon the lapse of 30 months" from the date of the presentation of the charges, namely the day of arraignment which in this case dated back to Christmas Day 2016.

Amendments in respect of requests for bail by persons charged with acts of terrorism were called upon by the court.

 Madam Justice Consuelo Scerri Herrera said that in such cases, if anything, the court should be allowed discretion for the purpose of striking a balance between the rights of the accused and those of society.

Although the reasons listed by the AG were normally valid arguments militating against the granting of bail, such reasons faltered under the circumstances envisaged by article 575(7) of the Criminal Code which declared that "Bail shall also always be granted to a person accused of an offence unless...there has been a final judgment acquitting, convicting or sentencing the person so accused."

Such instances presented the "ideal" scenario wherein electronic monitoring could effectively come into play, "greatly relieving the police of their burden in conducting physical monitoring, such as shadowing, so as to ascertain that the person is abiding by court orders as listed in the bail decree," stated Madam Justice Scerri Herrera, making reference to previous pronouncements wherein she had made such a recommendation.

The court granted Moussa bail on condition that he supplied a fixed address in Malta, signed the bail book and paid a deposit of €20,000, besides providing a personal guarantee of €50,000.

The court further barred the accused from leaving Malta.

Lawyer George Anton Buttigieg was defence counsel Moussa.

Lawyers Elaine Mercieca Rizzo and Charles Mercieca from the AG's Office prosecuted.