Prime Minister testifies in migrant pushback case: 'I am not involved in operational details of rescues'

Prime Minister Robert Abela testifies in a case involving migrants that were transported back to Libya last year after being rescued by a fishing boat contracted by the Maltese government

29 September 2021, 11:04am
by Matthew Agius

2 min read

Prime Minister Robert Abela

The Prime Minister has told a court that he is proud of his secretariat’s handling of a controversial migrant rescue case last year but denied direct involvement.

The case revolves around Malta’s coordination of a rescue of migrants in international waters last year by private fishing boats and the controversy that ensued after these were returned to Libya.
“I am proud of what we did because although we had no obligation, we went beyond the call of duty. No prime minister in the world would get involved in the nitty gritty of rescues. We were just a month into the COVID pandemic,” Abela told Mr Justice Lawrence Mintoff on Wednesday.

Cross-examined by lawyer Paul Borg Olivier, who is representing 52 asylum seekers who are claiming they were pushed back to Libya by the Maltese authorities, Abela replied: “I was told by the Head of Secretariat that many lives were saved. There was no direct role or direction from my side. The captain knew precisely when he left port what the situation of the vessel was.”

Abela repeatedly insisted that Malta had abided by its international obligations.

“This was not isolated humanitarian assistance but something we do consistently. 30 tonnes of food and drink were provided by the Maltese government. We also give fuel to help boats continue on their voyage. Operations were in the hands of the head of secretariat, Clyde Caruana,” Abela continued.

He added that the use of private vessels to rescue people in distress continues throughout the year. “We do this to save lives.”

The lawyers also made arguments revolving around a request by Paul Borg Olivier for the Prime Minister to exhibit documents of the testimony he gave in front of the magisterial inquiry into the alleged pushback.

Borg Olivier also wants the Prime Minister to exhibit the testimonies of his former head of secretariat Clyde Caruana and Neville Gafa. However, the State Advocate is objecting, insisting the Prime Minister could not be obliged to reveal protected documents. The judge has also raised the prospect that Borg Olivier’s request could be tantamount of asking the Prime Minister to breach the inquiry’s secrecy.

The case continues in November.

The case is against the Prime Minister, National Security and Law Enforcement Minister Byron Camilleri and AFM commander Brigadier Jeffrey Curmi.

Lawyers Paul Borg Olivier and Eve Borg Costanzi are appearing on behalf of 52 would-be asylum seekers who had been pushed back to Libya in the spring of 2020 aboard the Dar es Salaam, a Libyan-flagged fishing vessel owned by a Maltese businessman.

12:25 That is all for today. Thank you for following. A summary of proceedings will follow shortly. Kurt Sansone

12:25 Borg Olivier dictates another note. The case is put off for the continuation of evidence and the decree. The next sitting is Friday 12 November at 12:20pm. Kurt Sansone

12:18 The court will decree on the issue in the next sitting. Kurt Sansone

12:17 State Advocate Chris Soler says Borg Olivier is trying to constrain the courts into a self-assumption of jurisdiction or exercise some inherent powers merely because it is a court of a constitutional nature. “It appears that the plaintiff is conveniently forgetting or discarding the peremptory nature of the preliminary plea of jurisdiction, whatever the nature of the case. The existence of jurisdiction is a sine qua non to the validity of the action.” Kurt Sansone

12:16 QUICK RECAP: The arguments between the lawyers revolve around a request by Paul Borg Olivier for the Prime Minister to exhibit documents of the testimony he gave in front of the magisterial inquiry into the alleged pushback. Borg Olivier also wants the Prime Minister to exhibit the testimonies of his former head of secretariat Clyde Caruana and Neville Gafa. However, the State Advocate is objecting, insisting the Prime Minister could not be obliged to reveal protected documents. The judge has also raised the prospect that Borg Olivier’s request could be tantamount of asking the Prime Minister to breach the inquiry’s secrecy. Kurt Sansone

12:13 Borg Olivier rebuts the argument. He says that in the constitutional sphere, in particular the protection of fundamental human rights, there is to be no limit or privilege, especially when the defendant himself has an advantage in proceedings. Kurt Sansone

12:10 Soler: “This request ties in to the best evidence rule as the PM should not be asked to exhibit documents about third parties and neither should be constrained to violate the secrecy of the inquiry. The plaintiff is trying to get in through the window or the ventilator.” Kurt Sansone

12:04 Soler says Borg Olivier is mixing up the concepts of “privilege” with “discretion”. Kurt Sansone

12:02 Soler and Agius object to the request for several reasons, amongst them that these constitutional proceedings are still governed by Chapter 12 and cannot be used as an appeal or reconsideration of the results of the magisterial inquiry. “They cannot have criminal dimensions either... neither are they an analysis of the credibility of the witness, which commonly happens before courts of criminal jurisdiction.” Kurt Sansone

12:01 Judge: “You may be exposing the witness to proceedings for breaching the inquiry's secrecy.” Kurt Sansone

12:01 Borg Olivier: “I am saying that whilst the AG has a privilege over the Proces Verbal, the witness is not covered by privilege. This is why I am trying to obtain them from him.” Kurt Sansone

12:00 State Advocate Chris Soler protests that this is a form of appeal against the inquiry findings. Kurt Sansone

12:00 The judge tells the lawyer that this isn't an inquiry into the inquiry. Kurt Sansone

11:56 Borg Olivier dictates a lengthy note to the court. He refers to his request about the summoning of the Prime Minister where he asks for the testimony of Clyde Caruana and Neville Gafa before the inquiring magistrate to be exhibited in court. “Despite Magistrate Joe Mifsud in his conclusions mentions that both Carana and Gafa testified, there is no reference to their testimony or extracts of their testimony in the same conclusion of the inquiry. This request is being made directly to the Prime Minister because... in the course of the inquiry in question, he had presented an application informing the magistrate that he is a subject of the inquiry.” Kurt Sansone

11:51 The lawyer asks that the Prime Minister be ordered to exhibit the documents he mentioned. Kurt Sansone

11:51 Borg Olivier: “Whilst the plaintiffs are claiming a breach of their fundamental human rights, we have the defendant is hiding behind the excuse of privileged documents. Now, if you read the law... that privilege is limited to the Attorney General, it is not limited also for witnesses.” Kurt Sansone

11:44 Borg Olivier says he wants to cross-check some things in these testimonies. Kurt Sansone

11:43 Borg Olivier says the Prime Minister was supposed to exhibit a copy of his testimony in the inquiry, and that of Clyde Caruana and Neville Gafa. “I asked because there is no reference to their testimony in the conclusions of Magistrate Joe Mifsud, despite them testifying before him,” Borg Olivier says. Kurt Sansone

11:39 The court orders that the witness, Lt Col James Grech, is to be present in the next sitting. Kurt Sansone

11:36 Borg Olivier objects to the absence of the other witnesses from the AFM today. Army lawyer Susanne Agius says the witnesses are engaged abroad. Kurt Sansone

11:36 Paul Borg Olivier tells the court that he had requested a number of documents. “Privileged documents,” Soler interjects. Kurt Sansone

11:35 The Prime Minister steps off the witness stand. Kurt Sansone

11:35 Abela: “Not only wasn’t he answerable to me, he did not occupy any post in the OPM.” Kurt Sansone

11:34 Soler: “Am I correct in stating that since your appointment as prime minister, Neville Gafa was not answerable to you?” Kurt Sansone

11:33 Abela: “He had no role other than passing on contacts between the ministries.” Kurt Sansone

11:33 Borg Olivier asks the witness what the role of Neville Gafa was in the operation. Kurt Sansone

11:33 Soler asks if water food and lifesaving equipment were needed. Abela says they are necessary provisions. Kurt Sansone

11:32 Abela: “At that particular moment the AFM were doing a very difficult job in the circumstances and they were repaid by being questioned over involuntary homicide.” Kurt Sansone

11:31 State Advocate Chris Soler asks the Prime Minister to explain what supplies were needed in such situations. Kurt Sansone

11:31 Abela: “I was only informed in the same way the whole country was informed. The AFM was in charge of the situation.” Kurt Sansone

11:30 Borg Olivier insists on the question of whether he was briefed about the situation. The judge tells him that the witness had already answered. Kurt Sansone

11:29 The Prime Minister says that there were 800,000 migrants poised to leave Libyan shores. Kurt Sansone

11:28 Abela: “I am proud of what we did because although we had no obligation, we went beyond the call of duty. No prime minister in the world would get involved in the nitty gritty of rescues. We were just a month into the COVID pandemic.” Kurt Sansone

11:27 Borg Olivier asks the Prime Minister if he knows what the captain was told but Abela sidesteps the question. Kurt Sansone

11:27 Abela: “I was told by the Head of Secretariat that many lives were saved. There was no direct role or direction from my side. The captain knew precisely when he left port what the situation of the vessel was.” Kurt Sansone

11:26 Lawyer Paul Borg Olivier asks how the Prime Minister was briefed about the situation. Kurt Sansone

11:26 The Prime Minister insists that Malta acted according to its international obligations. Kurt Sansone

11:25 Abela: “This was not isolated humanitarian assistance but something we do consistently. 30 tonnes of food and drink were provided by the Maltese government. We also give fuel to help boats continue one their voyage. Operations were in the hands of the head of secretariat, Clyde Caruana.” Kurt Sansone

11:24 Borg Olivier presses on about the private vessels involved in the rescue operation but State Advocate Chris Soler interrupts and insists this goes beyond the scope of the questioning of the PM. Kurt Sansone

11:23 Abela: “The State was carrying out its obligation of saving life. We were coordinating. It doesn’t mean that the vessel carrying out the rescue is an agent of the State or engaged by the State.” Kurt Sansone

11:21 Borg Olivier points out that 12 people had died in the incident and the rest were sent back to Libya. Kurt Sansone

11:21 Abela: “What i know is that my head of secretariat spent three days and nights working flat out to save lives.” Kurt Sansone

11:20 Borg Olivier: “Were the vessels Dar es Salaam, Salve Regina and Tremar engaged by the Office of the Prime Minister?” Kurt Sansone

11:19 Abela: “Our country on the date in question had all its ports and airport closed by an order of the Public Health Superintendent.” Kurt Sansone

11:19 The Prime Minister says that Malta regularly has episodes where the AFM is called out to help. He also adds that the use of private vessels to rescue people continues throughout the year. “We do this to save lives.” Kurt Sansone

11:18 Abela: “Lifesaving equipment is provided every day, all year. That day we provided life vests and equipment. We were under tremendous pressure... the country had just declared a health emergency with the ports and airport closed. We could have done nothing and remained within our legal rights. Our vessels were unable to provide the necessary assistance.” Kurt Sansone

11:15 Borg Olivier makes reference to a document in the inquiry, where the Prime Minister had testified to having provided food and lifesaving equipment to the migrants. Kurt Sansone

11:14 Abela: “As Clyde Caruana [today’s finance minister] who was then the head of secretariat at OPM already testified... what I can say is only hearsay of what he told me.” Kurt Sansone

11:13 Borg Olivier asks the Prime Minister what his role was. Kurt Sansone

11:13 Abela: “As prime minister I am not involved directly in any operation. The AFM has its responsibilities. I recall the Brigadier had told my office that the AFM had insufficient assets to assist. Our obligations in the search and rescue area relate to coordination only. In this case, we went beyond that obligation. The Brigadier asked us if we could do all possible to save life at sea and that's what we did.” Kurt Sansone

11:10 Borg Olivier asks who was involved in the operation. Kurt Sansone

11:10 Robert Abela: “I had no direct role.” Kurt Sansone

11:09 Borg Olivier: “What was your role in the incident?” Kurt Sansone

11:09 The Prime Minister says he has not brought them with him. Kurt Sansone

11:09 Lawyer Paul Borg Olivier asks the witness whether he brought the requested documents. These relate to the inquiry that had taken place on the case. Kurt Sansone

11:08 Prime Minister Robert Abela takes the witness stand. He jokingly comments that the court is claustrophobic. He is administered the oath. Kurt Sansone

11:07 Good morning. Kurt Sansone

Matthew Agius is Senior Reporter on Law and Court Affairs at MaltaToday. He is also a Leg...