The unfettered discretion enjoyed by the Attorney General in deciding whether a person was to face a trial by jury or in the Magistrates’ Court could lead to a breach of the right to a fair hearing, a judge ruled yesterday.
The ruling was delivered by Madam Justice Lorraine Schembri Orland in two separate constitutional cases made in the course of trials by jury of Nelson Mufa and Patrick Ndubisi Nisi, both of whom are facing charges of drug trafficking.
The State had failed to address the issues raised
The First Hall of the Civil Court (in its constitutional jurisdiction) heard that in 2010 the Attorney General ordered that each of the men face a trial by jury on drug charges.
Mr Mufa was charged with conspiracy in trafficking 948 grams of heroin while Mr Ndubisi Nisi was charged with dealing in 491 grams of heroin and 148.50 grams of cocaine.
Both men claimed that the unfettered discretion given to the Attorney General, their prosecutor, over whether to commit them to a trial by jury in the Criminal Court or to charge them before a magistrate were in violation of their right to a fair hearing.
Madam Justice Schembri Orland said the European Court of Human Rights had already ruled, in the case of Mario Camilleri against the Republic of Malta, that this discretion was in violation of the right to a fair hearing.
The discretionary powers vested in the Attorney General meant that the prosecution had the sole right to decide the minimum penalty applicable to the offence.
The State had failed to address the issues raised as a result of the Camilleri judgment, the court added. This led to a spate of litigation, which was an unnecessary burden on the taxpayer.
The court ruled in favour of the two men and found that the application of the Attorney General’s discretion could lead to a breach of their human rights. As the two men had not yet been tried, the court ordered that copies of yesterday’s judgments were to be inserted in the criminal proceedings and the Criminal Court was to take note of the judgments for the purpose of the application of punishment in the event that the men were found guilty.