A man jailed for defiling his daughter will remain in prison despite the fact that his estranged wife is being charged with making up the abuse story.

Claiming a miscarriage of justice, lawyer Tonio Azzopardi is demanding his client’s immediate release, but Magistrate Aaron Bugeja said he was powerless to let the man go as the law did not cater for this situation.

The man, who is not being named to protect the identity of the girl, was sentenced to two years in jail for defiling his daughter – who was seven at the time and is now 20.

Dr Azzopardi filed the claim on Wednesday within hours of his client’s estranged wife being charged with perjury. His daughter is expected to face similar charges.

Magistrate Bugeja said he was not empowered by law to order the man’s release because he had been legitimately convicted and the judgment was also confirmed on appeal.

Moreover, there had to be judicial certainty that the estranged wife had actually committed perjury.

Magistrate powerless to release the man

The man had been jailed by Magistrate Miriam Hayman on September 29, 2011 and the judgment was confirmed on appeal by Mr Justice Lawrence Quintano on May 2, 2013. After the appeal, Dr Azzopardi challenged the Police Commissioner to investigate his client’s estranged wife and daughter over false claims.

A magisterial inquiry was also opened and the girl recanted the original version of events after new evidence led to the mother being charged with perjury. She was remanded in custody.

The man has a pending constitutional case over the right to a fair hearing, which is due to be heard today at 2pm.