A lawyer's mandate to represent migrants claiming human rights violations when they were taken back to Libya, was questioned in court on Wednesday.
In April 2020, 52 asylum seekers were picked up at sea by a boat commissioned by the Maltese government and taken back to Libya.
Lawyer Paul Borg Olivier, appearing for the migrants, filed a case against the government some seven months later, arguing that the decision to push them back to Libya violated human rights under the Constitution, the European Convention and the EU Charter of Human Rights because Libya was not considered to be a safe country.
On Wednesday, State Advocate Chris Soler challenged Borg Olivier’s mandate to represent the migrants through the power of attorney they granted him.
Taking the stand as a witness, Borg Olivier explained that he had initiated first contact with the migrants through various individuals and NGOs who work with asylum seekers. Subsequently, some members of the group contacted him directly through Messenger while they were still being held in a detention centre.
Asked how he had carried out due diligence on the people contacting him for assistance, Borg Olivier said that he had been given footage showing that the people were on the vessel that carried out the pushback. Later, these individuals were processed through the UNHCR and re-issued their asylum seeker certificates. Through the assistance of an employee of the organisation, Borg Olivier said he was able to speak to the migrants in small groups over video conference. It was during such meetings that employees and translators would facilitate the signing of the power of attorney agreements, a process which took roughly six months to complete.
Asked whether any third parties were paying for his services to the migrants, Borg Olivier said that he had offered his services pro-bono and had so far paid for any expenses related to the case out of his pocket.
Asked whether all of the clients named in the lawsuit were still alive and whether he was still in contact with them, Borg Olivier replied that as far as he knew all of them were still alive and well, with some even having received asylum protection in other countries through the UNHCR.
“Till now, not a single person has revoked the mandate that they granted me through the power of attorney,” he said.
Lawyer Susann Agius, who is appearing for the Armed Forces of Malta, asked Borg Olivier what verifications he made to be sure that the migrants were in fact on the boat and merited the power of attorney.
"Are you saying that any person in the detention centre could have waltzed in and given you a mandate on their behalf?” she said.
“I did not leave the whole process up to the UNHCR,” he replied. “I spoke to these people and heard their stories and verified them with the help of the UNHCR. But I was able to see footage of them on the boat on that day, praying and begging to be saved from drowning. These people were identifiable and so they signed the power of attorney mandate on the basis of who they are, backed up by their asylum seeker certificate.”
The court on Wednesday also heard from the State’s expert witness, Libyan lawyer Ali Al Swayah, who testified about the validity of power of attorney agreements in the eyes of Libyan law.
Al Swayah said that according to legislation in the North African country, in order to obtain a power of attorney, a written agreement must be drawn up in Arabic, as this is the working language of the country, and must be signed in person by both the client and a lawyer who is warranted by the Libyan state before that attorney can be given a mandate to act.
Such a document, he said, would be considered a contract between the two parties and the advocate must verify that the person is over 18 years old and be assured of their identity.
After being presented with a copy of one of the power of attorney agreements between Borg Olivier and the migrants, Soler asked Al Swayah whether it would be considered valid under Libyan law. He replied that it would not, owing to the fact that it is not in Arabic and does not appear to be stamped with a seal from the Libyan Chamber of Advocates.
Taking over questioning, Borg Olivier asked Al Swayah whether having a power of attorney agreement that conformed to Libyan law would allow that attorney to act on behalf of a client outside the jurisdiction of Libya, to which he replied that it would not, and that no such agreement would allow an attorney to act on behalf of the client in any other country that is foreign to Libya.
Asked by Agius whether obtaining power of attorney to act on behalf of a client in foreign jurisdictions would be permissible under any other legislation, Al Swayah said that this may be possible through the Apostille convention, which Libya is not a signatory to. However, all documents would have to be translated and certified by the Consul as well as the Justice Ministry. He added that this would be able to grant a lay person power of attorney over another but not a lawyer. Such a mandate for a lawyer to represent a person outside of their home jurisdiction does not exist, he said.
Judge Lawrence Mintoff deferred the case to September 25.
Lawyers Paul Borg Olivier and Eve Borg Costanzi appeared for the 52 asylum seekers. State Advocate Chris Soler is appearing for the respondents, together with Susann Agius who is representing the AFM.