Judge declares prosecutions by the Principal Immigration Officer to be illegal

Mr Justice Giovanni Grixti has declared illegal the practice by which cases against persons accused of immigration offences are prosecuted by the Principal Immigration Officer and not the Commissioner of Police, overturning a man’s three-year prison sentence in the process.

This emerged in an appeal filed by Mohamed Omar Adam from Somalia, who had been jailed after admitting to assisting would-be illegal migrants to enter Malta and making false declarations to the authorities.

Adam had pleaded guilty upon his arraignment on related charges in July and had been sentenced to three years of imprisonment.

But after changing legal counsel, he had then filed an appeal against the punishment and argued that the proceedings against him were null because he had been arraigned by the Principal Immigration Officer and not the police.

Quoting a recent judgment by the same court, the man’s lawyer, Franco Debono, had argued that the Principal Immigration Officer had no power to act as a prosecutor.

In his judgment on the matter, Mr Justice Giovanni Grixti observed that the Immigration Act grants the Principal Immigration Officer the powers and rights to exercise “all duties and powers under this Act”. The law goes on to authorise the Principal immigration Officer to delegate his powers to other public officers – if the delegation is made in writing.

However, he also noted that in a recent judgment handed down by the court in September, Police vs Hamid Afou, it was decided that the only nomination made by the Prime Minister under the Immigration Act had been made in 1970.

On his part, the present Commissioner of Police had delegated this function to civilian immigration officers, but only recently.

The judge said that a recent government notice issued earlier this month changed none of the effects of the Afou judgment, which it said was also applicable to the current situation.

Proceedings, in this case, had been filed by the Principal Immigration Officer against Adam, but after the arraignment, the acts indicated the case as “Police (Inspector Karl Roberts) vs Mohamed Omar Adam.” Despite this, noted the court, the police had never filed proceedings against the accused.

The court said the law was clear in that the Principal Immigration Officer had no power to lead a prosecution, even if he happened to be a police inspector. The power to prosecute cannot be inferred but must be clearly declared by the law.

The case speaks for itself, said the judge. The prosecution had been led by an official who had no power to do so.

“This means that even if the Principal Officer is a police inspector, acting in the name of the Commissioner of Police in his capacity as Principal Immigration officer, this makes no difference to the case in issue as the prosecution was led by the Principal Immigration Officer and not by the police.”

The court dismissed the case against the appellant as irregular and revoked his prison sentence, clearing him from all guilt and punishment.

Lawyers Franco Debono and Francesca Zarb were defence counsel.