A clear case of misinformation

The recent visit by the United Nations Working Group on Arbitrary Detention warrants some replies. The hasty conclusion the group reached led to misconceptions of reality. The press release, along with its annex, issued in Geneva two weeks ago show this clearly. It also shows that the group members were fed wrong information, giving a distorted image of the reality Malta is living through.

With regard to our judicial system, it was stated: "The working group has been informed that it is legally possible to challenge the lawfulness of detention before the courts of law in Malta, including the civil courts in their constitutional jurisdiction and, ultimately, before the Constitutional Court. At any rate, in practice, such procedures do not provide for an effective remedy. The working group is not aware of a single case in which such a challenge was successful."

This line of reasoning is manifestly wrong. The Constitutional Court is the highest court in Malta to which everyone (including rejected asylum seekers) residing in this country has access. There is a list of judgements delivered by this court against arbitrary detention, which the group was seemingly not informed about.

On the Commission for Refugees, the group said: "Despite the laudable efforts of the Commissioner for Refugees... the procedure still takes too long." It then says it has come across asylum seekers who had been waiting for six months to sit for their first interview.

While noting that the asylum process does not fall within the remit of this group, I feel that, here too, it is showing unfamiliarity with Maltese legislation. In fact, a six-month wait is well within the parameters afforded by our laws and the relevant EU laws.

What the group also seemed to be unaware of is that applications for asylum are normally processed on a first in, first out basis. Besides the fact that those still waiting are a single digit percentage. Had due consideration been given to the fact that in 2008 we received 60 per cent more illegal immigrants than a year earlier and that, unlike what happens in other states, most of those arriving apply for asylum, the working group would have realised that the rate at which such applications are being processed is nothing short of an achievement. In fact, our process is among the fastest in the European Union.

However, although the report claims that Malta is facing difficulties because of illegal immigration, it contains very little, if any, concrete proposals as to what can be done to improve this situation.

I do hope this shortcoming will be addressed when the group publishes its full report later this year, by at least soliciting other member states to relocate persons granted international protection who, evidently, cannot be integrated here.

To add insult to injury, the working group also turned on Malta's detention policy for illegal immigrants, unjustly stating that this is being used as a deterrent.

The group failed to offer alternative ideas in this matter too. It simply claimed that, since illegal immigration had been decriminalised, illegal immigrants should be set free immediately upon being identified.

It is clear that the working group has looked at this matter in the most simplistic of manners. The group undoubtedly did not realise that releasing illegal immigrants upon identification would not be appropriate when bearing in mind the geographic dimensions and Malta's demography. Immediate release would amount to a security risk we are not prepared to take under any circumstance.

Indeed, the early release from detention of persons who reach Malta undocumented and, eventually, turn out not to qualify for asylum would, besides posing a security risk, further greatly minimise the chances of returning these persons to their countries of origin. This would also be unfair to third country nationals subject to the visa requirement who reach Malta regularly, thereby undermining legal migration.

The working group also criticised the so-called "concentration of powers" under the Ministry of Justice and Home Affairs. Apart from the fact that the group is completely incorrect in claiming that the Commission for the Administration of Justice and the Permanent Commission Against Corruption answer to the Justice Minister, it is worth noting that, though certain branches in the administration of justice fall under this ministry from the administrative point of view, most of these - such as the courts of justice and, to a large extent, the office of the Attorney General - are independent and constitutionally shielded from government interference. This mistake is also the fruit of lack of information on a system of checks and balances that are part of our democracy.

Furthermore, the group criticised Malta for having a high proportion of persons awaiting trial in its prison population.

This premise is also incorrect and evidently based on misleading data. It must be said that out of a total population of 431 at the CCF, only 131 are being detained while awaiting trial - just 30 per cent.

Furthermore, 76 are non-Maltese nationals waiting to be tried in connection with serious crimes and denied bail. Had this information been requested, the group would not have erroneously concluded that over 50 per cent of the prison population is awaiting trial.

Malta, as a small island state, is fully open to international scrutiny, debate and criticism about the policies it employs.

However, these should be fair and based on facts and evidence. The initial report submitted by the Working Group on Arbitrary Detention is anything but fair and substantially based on hearsay, misinformation and wrong impressions. We sincerely hope that, come May, the group will not only check its facts and set the record straight but also come forward with concrete proposals that tangibly assist us in dealing with the challenges that illegal immigration presents us with.

Dr Mifsud Bonnici is Minister of Justice and Home Affairs.