Charmaine Gauci testifies in Yorgen Fenech constitutional case

Superintendent of Public Health Charmaine Gauci has testified in constitutional proceedings filed by Yorgen Fenech, the man accused of masterminding Daphne Caruana Galizia's murder.

Gauci was summoned to the stand before Mr Justice Lawrence Mintoff this morning, where she was asked about the public health emergency she declared in Malta as a result of the COVID-19 pandemic.

If measures were not implemented, Gauci said, the risk was that the health services would not be able to cope. “We can look at Italy for what it would look like. If we don’t take the measures needed, the consequences are huge. Much of the population would be affected, vulnerable people, elderly and chronic illness would get complications and death. If we don’t keep transmission down, we will have more cases... health services will not cope with demand,” she testified.

“We never want to be in a situation of having to choose which patient gets a ventilator and which doesn’t,” she said, adding that the wearing of a face mask was for risk mitigation and did not provide certainty of escaping the virus.

The courts were adjudged to be one of the places where many people, who would usually not be together, congregate. The courts and registry were closed on 16 March, Gauci said.

The judge told State Advocate Victoria Buttigieg that the Constitution did not say that the public health emergency had to be proclaimed by the President, as she had been arguing.

Cross-examined by lawyer Charles Mercieca, Gauci agreed that it was the first time since she became superintendent that the courts had been closed and judicial times suspended.

The legal notices did not give any indication of when the courts would be reopened, she confirmed.

Mercieca suggested that prisons were places where illnesses could easily spread.

“If you don’t take the appropriate measures,” replied the professor, explaining that detention centres, care homes and prisons were deemed high risk but that preventive measures had been taken and these had been successful for the large part.

Mercieca pressed the point, quoting a study saying that bloodborne or airborne diseases are particularly easily spread in prisons.

“COVID is not blood borne or airborne. It is droplet transmission,” Gauci replied.

Replying to a question by the judge, she said that while there was no fixed date for measures to be relaxed, the legal notices stated that urgent court cases and those in the public interest could be heard with urgency.

Mercieca said it was incorrect for the State Advocate to say that his client was using the constitutional proceedings to attack the Superintendent of Public Health, saying that he, together with the rest of the Maltese people, had nothing but praise for Gauci “and all those who are fighting against the pandemic.”

State Advocate Victoria Buttigieg clarified: “you are saying she breached your human rights. The initial application attacks the superintendent and her work, amongst them her orders during the pandemic.”

The judge pointed out that Gauci’s decisions affected everyone’s freedoms. “She must ensure that public health is protected. A balance must be struck between the rights of the individual and the public. The exercise is whether this balance is correct. Nobody is attacking anybody.”

Jason Azzopardi files note on Charles Mercieca

Early on during this morning’s hearing, lawyer Jason Azzopardi presented a note to the court, containing an email sent by lawyer Andrew Borg Cardona to the Commission for the Administration of Justice on May 7. In it, he argues that lawyer Charles Mercieca is in material breach of the Code of Ethics for Lawyers and requests that the case be referred to the Lawyers Committee to protect the interests of his clients “and the profession in general.”

Mr Justice Mintoff noted what Azzopardi had to say and pointed out that Azzopardi had no locus standi in these proceedings.

Mercieca caused a stir last week when he resigned from the Attorney General's office to join Fenech's defence team 24 hours later. The move is not illegal but was described by Justice Minister Edward Zammit Lewis as "insensitive".