Court dismisses alleged human trafficker's writ

Mr Justice Gino Camilleri, in the First Hall of the Civil Court, yesterday dismissed a writ contesting the validity of the law in terms of which a European Arrest Warrant had been issued.

Carmelo Borg, 27, from Rabat was arraigned in court together two Chinese nationals and was charged with conspiracy in human trafficking.

The prosecution informed the court, presided over by Magistrate Joseph Apap Bologna, that the three accused were wanted in Italy to face charges of human trafficking and participating in a criminal organisation.

All three accused are wanted in connection with the Maundy Thursday drowning of six Chinese and Mongolian illegal immigrants some 15 miles off Sicily when they were forced off a boat that allegedly left from Malta.

This was the first arraignment in terms of a European Arrest Warrant since Malta joined the European Union.

The arraignment took place after the arrest warrant was issued against the three by a tribunal in Modica.

Mr Borg filed his writ against the minister responsible for Justice and the Interior and against the Attorney General.

He claimed that the Attorney General had commenced proceedings against him in terms of the European Arrest Warrant that had been legislated by a legal notice issued this year.

This subsidiary legislation was enacted through the powers granted to the Minister for Justice in terms of the Extradition Act.

Mr Borg added that the court before which his case was to be heard was that of the Magistrates Court as a Court of Criminal Inquiry, and that therefore the provisions of the Criminal Code were applicable to his case, as this court had to collect not only the evidence given by the prosecution but also the evidence that the accused wished to produce.

This principle clearly resulted from various provisions of the Extradition Act.

However, the subsidiary legislation in terms of which Mr Borg was arraigned precluded Mr Borg from producing any evidence that might contradict the evidence against him from a foreign court.

Furthermore, the prosecution was not bound to produce evidence that was at least of a prima facie level in his regard.

Mr Borg claimed that the Minister for Justice had exceeded his powers in terms of the Extradition Act and had enacted subsidiary legislation that was against the spirit of the principal law.

This rendered the administrative action taken by the minister to be ultra vires and consequently null and void.

Mr Borg concluded his writ by requesting the court to declare that the administrative action on the part of the minister was ultra vires and therefore null and void, and to consequently annul the subsidiary law in terms of which he had been arraigned in court.

Mr Borg also requested the First Hall of the Civil Court to hear his case with urgency.

Defendants pleaded that the enacting of subsidiary legislation was a legislative act and was not an administrative act.

The courts were therefore precluded from reviewing this administrative act.

They added that an action for the review of an administrative act had to be filed within six months from the date of the action.

Furthermore, defendants pleaded that the legal notice complained of by Mr Borg was valid and in accordance with the law.

There was no doubt, said the court, that the legal notice contested by Mr Borg was a legislative act, and could never be considered as an administrative act of the government.

As a result, Mr Borg's action could not have been filed as a contestation of an administrative action and his claim could not be upheld.

The court emphasised that when a government minister or some other authority enacted a subsidiary law and overstepped the authority given to him by the principal law, then the said subsidiary law was null and void.

Mr Justice Camilleri added that it did not result that the Minister for Justice and the Interior had exceeded his authority when promulgating this subsidiary law.

Mr Borg's complaint was in the sense that the legislation in question precluded him from producing evidence.

However the court declared that this was a specific law which regulates the proceedings to be followed for extraditions of this nature.

One could not therefore refer to the general principles contained in the Criminal Code.

In these cases the Magistrates' Court functioned as a Court of Committal and it exercised the functions of a court of inquiry within the limits of this specific law.

The court therefore dismissed Mr Borg's writ.