Let us put aside for a minute the fact that the Constitutional case was filed by the infamous Yorgen Fenech and keep in mind, that like him, there are many inmates at Corradino Correctional Facility who are awaiting trial.
This week, the Court ruled against the Superintendent of Public Health, Charmaine Gauci, and found that Fenech’s fundamental human rights have been breached. The Constitutional Court, in a 59-page judgment, noted that Fenech has been under preventative arrest for nearly six months. Because the health authorities closed the Courts indefinitely, his right to the protection from arbitrary arrest or detention was breached.
During this time, Fenech had repeatedly made requests for bail, which were denied. So, how did the courts hear the requests for bail but did not continue with the compilation of evidence? The answer lies in the Legal Notices issued by the Superintendent for Public Health.
We agree with the fact that Fenech was not granted bail because, in the end, this was a legally and morally sound decision, in that there is good reason to think he may escape from Malta. This week’s case was not about that, however.
We also agree with Gauci’s arguments, keeping in mind that she is not issuing Legal Notices in her personal capacity, but in her capacity as Superintendent for Public Health. The pandemic has created a situation no one could have ever predicted. The courts had to be closed to help reduce the spread of the virus, and the Legal Notices also contended the possibility that some court cases may be urgent, or in the public interest, and that these should continue to be heard.
The issue is, who and how is it decided whether a case is important enough to be heard? The answer is: The Courts. And this where the issue lies.
In the case of Fenech, the Court decided that his requests for bail were urgent, or in the public interest, and had to be heard. But his request for the compilation of evidence was not. The Court that had evaluated the case of his request for bail even noted that his request for the compilation for evidence should be allowed.
It is clear then, that the Courts are not even agreeing between themselves as to what cases are urgent or in the public interest. The issue is about the Courts having discretion to decide which cases should be heard and which ones shouldn’t. The Courts have responsibility in a lot of important matters - this is just part of how the system works. This is why trust in our judicial processes is important, but a blank canvas is just too much trust and just not conducive to justice.
The issue is that the Legal Notices did not provide direction to the court on what basis the urgent cases should be decided, leaving all those in preventative arrest in limbo. Despite these people having been charged with criminal offences, they are still presumed innocent, and their fundamental human rights should not be breached.
This is not about Fenech per se, but about anyone who is in this particular situation. People who are yet to stand trial cannot be stuck in prison for nothing, just because a Court decided so, with no way of seeking redress. This goes against the rule of law. And the rule of law applies to everyone, even those under preventative arrest, like Fenech.
The conclusion to Fenech’s Constitutional case resulted in this Court admitting that the Legal Notices could be interpreted differently by the different Courts, resulting in conflicting and inconsistent decisions.
Globally, governments are being allowed, and even required, due to the Coronavirus, to take restrictive measures in the public interest. Some countries, like Turkey, Russia, Iran and China, however, have reportedly taken the opportunity to squash human rights.
The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment has also said that any restrictive measure taken vis-a-vis persons deprived of their liberty to prevent the spread of COVID-19 should have a legal basis and be necessary, proportionate, respectful of human dignity and restricted in time.
The Legal Notices issued by the health authorities go against many of these conditions, especially since the closure of the courts was indefinite. Let us not be like those totalitarian, or quasi-totalitarian countries, using this pandemic as an excuse to put aside our fundamental human rights, regardless of who the rights belong to. It is a very dangerous precedent.