The legal notices suspending court proceedings for all but the most urgent cases relegated the rule of law to second place, rendering justice dispensable rather than essential, Yorgen Fenech's lawyers argued in court on Monday.
Fenech, who stands accused of complicity in the murder of Daphne Caruana Galizia, is challenging the constitutional validity of the public health emergency order issued by the Superintendent of Public Health in mid-March. That order brought about the indefinite suspension of legal time-limits in court cases, with people held in preventive arrest, including Fenech, having no idea when their case will resume.
When testifying a week ago, Superintendent for Public Health Charmaine Gauci defended the decision to shut down the law courts, saying that such an unprecedented measure was warranted by the risks posed by the COVID-19 pandemic.
Legal Notices 61 and 65 of 2020 had left it to the discretion of the courts to assess any particular case and decide whether it merited an urgent hearing.
Fenech's lawyers complained that the compilation of evidence against him had come to a complete standstill, with no progress since the last hearing on February 20.
Lawyer Charles Mercieca argued that Fenech had a fundamental right to personal freedom and to have his case heard. Failing that, he must be given bail under court conditions.
Mercieca complained that “justice has been put at par with hair salons, restaurants and retail outlets.”
His client wanted to challenge the allegations made by the prosecution but could not do so since the continuation of the case was being blocked.
Worse still, while other cases had been heard and bail granted Fenech’s criminal case was at a standstill, leaving him at the mercy of the prosecutor.
State Advocate Victoria Buttigieg rebutted those arguments saying that court’s decision no way impinged upon the fundamental human rights of the applicant.
The legal notices affecting court operations had been issued under a public health emergency and besides, Fenech still had a remedy at law, namely to request bail.
The fact that such a request had not been upheld did not mean that his rights had been breached.
Mr Justice Lawrence Mintoff, adjourned the case for judgment.
Lawyers Maurizio Cordina and Antoine Agius Bonnici also appeared on behalf of the State Advocates’s Office.
Lawyers Gianluca Caruana Curran, Marion Camilleri and Charles Mercieca assisted Fenech.