Lawyers want temporary protection order system declared unconstitutional

Lawyers have mounted a Constitutional challenge to the way in which temporary protection orders are given out, in instances were abuse is alleged.

The temporary protection order system as it currently stands, essentially punishes one party to the dispute without giving it the opportunity to be heard.

Abdusalam Moamer Mohammed from Libya recently filed a Constitutional application in the First Hall of the Civil Court in its Constitutional jurisdiction arguing that section 540A of the Criminal Code, which permits the issuing of temporary protection orders after hearing only one party was in breach of his fundamental rights.

Mohammed had come to Malta in 2013 shortly after getting married. The union resulted in a daughter who is four years old, and was born in Malta. But the marriage was not to be a happy one, with the more secular Mohammed ending up in conflict with his wife’s family’s strict Muslim lifestyle.

Due to the differences in opinion, the man had moved out of the matrimonial home in 2017 and gone to live elsewhere. He had no intention of cutting ties with his daughter, but his wife had immediately changed both her and her daughter’s mobile phone numbers and shortly afterwards, moved elsewhere with the child without notifying the plaintiff.

For a long time, the only contact he had was through his father-in-law who insisted that he change his life and live as a “good Muslim” in order to be able to see his daughter again.

Mohammed had eventually found out that his wife had gone to live in an apartment in Birkirkara. He had tried to visit his daughter on three occasions but his wife had stopped answering the intercom when she heard his voice.

On March 21 2019, he had again attempted to see his daughter and had found the door to the common area of his former wife’s apartment block open. He walked up, knocked on the door and asked to see his daughter.

The application states that he had heard the woman call up her father and shortly afterwards, the police had arrived. He asked the officers to allow him to see his daughter for a few seconds, but after being sent downstairs to wait, he was told that his wife was not going to allow it and that he should not approach the apartment block again.

He was also turned away when he tried to visit his daughter at school the next day, after a friend of his told him he had seen his daughter at a particular educational institution. He had not been involved in his daughter’s registration there.

That same day he was summoned to the Paola Police station where he was informed that a temporary protection order had been issued against him, prohibiting him from approaching or contacting his wife, or from going to places she ordinarily would visit. Doing so would see him face a penalty of €7,000.

The man said that did not know why he was reported to the police and why this should merit a protection order.

The order itself made reference to an application filed by a police inspector, but neither the Inspector, nor any other police officer had spoken to him about the report allegedly filed by his wife.

Mohammed claimed this legal procedure breached his right to a fair hearing under article 39 of the Constitution, as the principle of audi alteram partem (hearing both sides) was not adhered to.

In fact, neither the police, nor the “trained professional” who had deemed the risk to be high enough for a temporary protection order to be issued, nor the duty Magistrate issuing the order had heard his version of events.

The application called upon the First Hall, Civil Court in its Constitutional Jurisdiction to declare article 540A of the Criminal Court, under which the temporary protection order had been issued, as unconstitutional.

Moreover, he asked the court to declare that his rights to family life and to an effective remedy had been breached by the temporary protection order, requesting the court to revoke it make provisions
accordingly.

Lawyers Jason Azzopardi, Kris Busietta and Julian Farrugia signed the application.