Yorgen Fenech’s rights had not been breached by the COVID-19 public health emergency order that brought court proceedings to a standstill, a court of appeal declared on Monday.
In May, the First Hall, Civil Court, presided over by Mr Justice Lawrence Mintoff, had found that Fenech’s right to protection from arbitrary arrest or detention had been breached by the order, suspending legal time-limits indefinitely.
Both the State Advocate and the Superintendent of Public Health had appealed the judgment.
The order, issued under Legal Notices 61 and 65, had suspended judicial proceedings but allowed courts discretion to decide whether to hear cases.
That discretion was defined as a “crucial safeguard” by the Superior Court of Appeal in its judgment on Monday, observing that allowing such “judicial control over measures restricting fundamental human rights is deemed as fundamental to democracy and the rule of law”.
The court, presided by Chief Justice Mark Chetcuti, Mr Justices Giannino Caruana Demajo and Anthony Ellul, shot down Fenech’s argument that the proper procedure for declaring a public emergency had not been followed and that such an order ought to have been issued by the President rather than the health authorities.
The court distinguished between a state of public emergency and a public health emergency, pointing out that Malta, like other European states, had opted for the latter to be issued by the Superintendent of Public Health in terms of the Public Health Act.
A public health emergency was called for when there was an actual or imminent risk to public health and it was not disputed that the COVID-19 pandemic presented such a risk, the court said.
Moreover, Gauci herself when testifying in the proceedings, had explained how the measure had been taken after expert scientific advice.
The court was to proceed cautiously when presented with a technical and medical opinion, unless that was “manifestly unreasonable”, the judgment declared.
The first court had failed to consider that in terms of the right to life, the State also had “positive obligations that included protection of the individual from reasonably foreseeable threats, such as that of the SARS-Cov-2 virus,” the appeal court said.
Compulsory detention to prevent the spread of infectious diseases was legitimate, as a measure of “last resort,” observed the court, citing caselaw from various “democratic countries” upholding such a measure as long as it was “necessary and proportionate.”
Legal Notices 61 and 65 had been launched to safeguard public health, and had been necessary, proportionate and limited in duration, the court declared.
Between March and May, when the compilation resumed, Fenech had filed an application contesting the legality of his arrest and three successive requests for bail, all dealt with expediently by means of “clear, detailed and well-researched decrees,” observed the court.
Besides, contrary to what his lawyers had argued, Fenech’s continued detention was not because witnesses could not testify while the murder proceedings were suspended, but on account of other considerations.
The accused’s resources and contacts abroad, the possible tampering with evidence, the gravity of the charges, the complexity of the case, and the public disorder that could be sparked by his release owing to the socio-political background of the crime, were factors considered by the courts when turning down Fenech’s requests for bail, the judgment observed.
In the light of all considerations, the court upheld the State’s appeal, declaring that Fenech’s rights had not been breached.