PM, Brigadier to testify in Libya pushback case, as migrants lawyer accuses AG of creating obstacles

The Prime Minister Robert Abela and Brigadier Jeffrey Curmi will be summoned to testify next month, together with Minister Clyde Caruana and former OPM coordinator Neville Gafa, in a case filed on behalf of 52 would-be asylum seekers who were pushed back to Libya in April last year.

In a sitting characterised by loud exchanges between the lawyers involved, Mr. Justice Lawrence Mintoff heard complaints made by lawyer Paul Borg Olivier about an application filed yesterday by the Attorney General, objecting to Borg Olivier’s request for the presentation of a copy of the inquiry and acts, as well as testimony, before the court of magistrates.

The objection was filed without the plaintiff’s lawyer being notified and was upheld by the court, which apparently ordered that Borg Olivier write directly to the AG.

The AG is resisting efforts to exhibit the requested documents, claiming that he was using the wide discretion he is afforded by law, to do so.

The Constitutional Court has a carte blanche to investigate and promote Human Rights, said Borg Olivier, not to breach the right to a fair hearing and resist the production of the AG’s evidence, he said. The lawyer argued that he had not been given the opportunity to be heard in relation to the application filed by the State Advocate, which had been decreed by a magistrate.

READ ALSO: 52 asylum seekers take government to court over delayed rescue and pushback

Tensions in the courtroom were high, so much so that at one point Borg Olivier, after being cut off mid-sentence several times by state advocate lawyer Chris Soler, slammed his hand on the podium and injured himself.

“Yesterday an application was filed that this side had no opportunity to answer to,” he protested. The judge explained that the AG’s request had been sent to his office this week, having been filed five days before.

“Are we going to make submissions over a decree?” Soler asked, incredulously, but Borg Olivier retorted that the request had not yet been decreed, telling Soler that he “should be ashamed” for having suggested that.

Mr. Justice Mintoff pointed out that the court is not obliged to send a notification “when a request is not in conformity with the law.”

Borg Olivier filed a new request during today’s sitting, asking that he be given the opportunity to explain the importance, validity and the legal and constitutional right of his to have the AG or his representative present the conclusions of the inquiry on the merits in addition to other documents.

The lawyer went on to dictate a long note on the legality of the issue.

He argued that the applicants were victims of “this same nation and so in its Constitutional competence, this court has, as recognised by the AG himself, all powers to gather all evidence to maximise its search for the truth.”

Borg Olivier’s clients, who are in Libya, were still suffering inhuman treatment, he said and so the court must ensure that the process is impartial and fair. The search for truth cannot be blocked by any party of witness to this case, said the lawyer.

Soler argued that there were other, more established, methods of challenging the constitutionality of the law.

Lawyer Susan Agius for the AFM added that the conclusions of the inquiry in question were “well known and in the public domain,” in such a way that this court could if needed take judicial notice of the same.

“Therefore, the defendant cannot understand the insistence to hear the AG when the law is clear and therefore it appears that this insistence is only a vexatious one.”

Mintoff highlighted the fact that it is the registrar of the Criminal Court who must exhibit the case file. If not in the registry, an ad hoc request to the AG must be made, he said. Borg Olivier replied that the AG could take months to answer him. “If he wants to say no, why doesn’t he come here and tell me ‘no’?”

The lawyer posited that these were “excess formalisms, which are being instigated by the Court and the AG.”

Mr. Justice Mintoff said he would decree from chambers on the matter.

At this point the lawyers once again bickered in loud voices, causing the judge to remark that it was not the place to do so. “If you have witnesses, summon them for next sitting,” the judge added.

Borg Olivier gave notice of his intention to summon Brigadier Jeffrey Curmi and the Prime Minister Robert Abela in the next sitting, limitedly on the question of jurisdiction. “The operation was coordinated from the OPM, after all,” he said.

There was also Clyde Caruana, Neville Gafa and the owners of the boats to testify, he added. “Was the ship an agent of the state or not? This will emerge from the questions I will make,” Borg Olivier said, explaining that he wanted to prove the link between the rescue operation and who coordinated it.

The case will continue on May 19.

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