Provisions of the Dangerous Drugs Ordinance which empower the Attorney General to decide whether an accused person was to face a trial by jury or trial in the magistrates court could lead to a breach of the right to a fair hearing, Madam Justice Lorraine Schembri Orland ruled today.

This ruling was delivered in two separate constitutional references made in the course of the trial by jury of Nelson Mufa and Patrick Ndubisi Nisi, both of whom are facing charges of drug trafficking.

The First Hall of the Civil Court, in its constitutional jurisdiction, heard that in 2010 the AG ordered that each of the men had to face trial by jury on drug charges.

Mr Mufa was charged with conspiracy for trafficking in 948 grams of heroin while Mr Ndubisi Nisi was charged with dealing with 491 grams of heroin and 148.5 grams of cocaine.

Both men claimed that the unfettered discretion given to the AG, their prosecutor, as to whether to commit them to trial by jury in the Criminal Court or to charges before a magistrate were in violation of their right to a fair hearing.

Madam Justice Schembri Orland said that the European Court of Human Rights had already ruled in the case of Mario Camilleri against the Republic of Malta that this unfettered discretion was in violation of the right to a fair hearing.

The discretionary powers vested in the AG meant that the prosecution had the sole right to decide the minimum penalty applicable to the same offence.

The court added that the state had remained passive and had failed to address the issues raised as a result of the Camilleri judgment. This had led to a spate of litigation which was not an ideal situation and was an unnecessary burden on the taxpayer.

The court ruled in favour of the two men and found that the application of the AG's discretion could lead to a breach of human rights.

As the two men had not yet been tried, the court ordered that a copy of its judgments be inserted in the criminal proceedings for the Criminal Court to take notice of the judgments for the purposes of the application of punishment in the event that the men were found guilty.

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