Prime Minister Robert Abela said Tuesday that the government was faced with a choice between letting a number of people drown or save them. “We chose to save them,” he told a court during his testimony in the case filed by detainees who were held on tourist boats for nearly 40 days in 2020.

Abela told the court, presided by Mr Justice Toni Abela, that “it was a contingency based on a public health emergency".

Asked why they were held outside Maltese territorial waters, Abela replied that the location was not chosen on the basis of territorial criteria but on safety issues. 

Abela and Home Affairs Minister Byron Camilleri took the witness stand yesterday in a human rights case filed by asylum seekers from Sierra Leone, Ivory Coast, Nigeria, Liberia and Bangladesh among others. The migrants had been detained on board boats normally used for coastal sightseeing cruises, after being rescued at sea in the Maltese search and rescue region. 

They are claiming that their prolonged confinement at sea constituted a breach of their fundamental rights.

The case dates back to 2020 when the government had chartered four commercial sightseeing boats from Captain Morgan, a local sightseeing cruise company, and used them to detain asylum seekers who had been rescued in the Maltese search and rescue region.

A total of 57 individuals had been rescued by the Libyan-flagged fishing vessel Dar al-Salaam, which was itself involved in a separate pushback to Libya. In an operation coordinated by the government, the group of migrants were transferred on to the Captain Morgan vessels around 13 nautical miles off the coast.

The operation came at a time when, citing the coronavirus outbreak, both Malta and Italy had closed their ports to migrant rescues. Malta had claimed that sea rescue was not possible because of limited resources, and prohibited humanitarian rescue vessels from entering port.

They filed their constitutional claim in October 2021, against the Prime Minister, the minister for Home Affairs and the State Advocate, before the First Hall of the Civil Court in its Constitutional Jurisdiction, arguing that their fundamental human rights - in particular, their right to freedom from arbitrary arrest and their right to freedom from inhuman and degrading treatment- had been breached. 

They are also seeking compensation for the violation of their fundamental human rights.

Questioned about his Involvement on the transfer to Captain Morgan, Abela said it was the government's obligation to save everyone it could. "There were two operators. It was not a political decision, but a government one... at the time, the government did not have the comfort of being in an air-conditioned courtroom. The country was in an emergency. The Superintendent of Public Health had declared a health emergency, our airport was closed, our ports were closed, there was a travel ban and the citizenry was not able to leave the country. We did not neglect our duty to save life at even a single instant, he said.

Abela added that Malta and Lampedusa were facing a disproportionate burden in relation to our size. The detention facilities were all full. We are talking about territory which is part of the European Union, immigration is a problem that must be addressed by all member states..."

Asked whether it was a political decision or a public health decision, Abela replied: "Public health. In fact it never repeated itself. We had the choice to either save lives... the country was paralyzed by COVID-19 restrictions at the time.” The PM insisted that the rescued migrants were held in conditions which were as comfortable as the situation permitted.

Testifying, Minister Byron Camilleri said he was not involved in the selection of Captain Morgan to provide this service. "Everybody who knows me, knows I don't interfere in processes."

"It was a collective decision by government," he said. Pressed as to whether it was a decision taken by cabinet, parliamentary group or otherwise. "It was a government decision." 

Camilleri said that when these migrants were still at sea, “we did several things to protect their rights.... when they arrived in Malta, they were given the right to legally, even though their arrival was illegal under the Dublin regulations, to go to Germany..."

Food, clothing, medical services were provided to the migrants, there were doctors and nurses who were continuously assisting, said the minister.

The plaintiffs are being assisted by aditus Foundation director and human rights lawyer Neil Falzon, aditus Foundation assistant director Carla Camilleri, aditus lawyer Mireille Boffa, lawyer and JRS director Katrine Camilleri, and lawyer Cedric Mifsud.