A lawyer has filed a constitutional case challenging a clause in Maltese law barring suspects from exercising their right to remain silent.

Joe Brincat, a former Minister of Justice, is appearing for Morgan Ehi Egbomon, a 46-year-old Hungarian who stands charged with money laundering after he allegedly failed to declare $144,000 and €27,000 in cash at the airport in June 2007.

In money laundering cases, the law lays down that a suspect has to reasonably explain where the money came from.

Dr Brincat argued that this was incompatible with a suspect's right to remain silent as enshrined in the European Convention of Human Rights. In fact, his client had been arraigned for not explaining the source of the money he was carrying when, Dr Brincat insisted, he was simply exercising the right to remain silent under interrogation.

When the prosecution declared there was no reasonable explanation for the accused having the money, the burden of proving innocence fell on the defence. This meant, Dr Brincat argued, that the balance between the defence proving innocence and the prosecution proving guilt was disproportionate.

In a nutshell, if one remained silent during questioning with the onus of proving his innocence falling upon him but not offering an explanation, the person would be found guilty.

The right to remain silent granted to the accused under interrogation thus meant nothing especially since the lawyer was at present not allowed to assist a client at that stage.

Dr Brincat asked the Constitutional Court to declare that article 3(3) of chapter 373 and article 22(1c) (a) of chapter 101 of the laws of Malta denied a person the right to a fair hearing and the presumption of innocence. He pleaded that this violated article 6 (1), (2) and (3) of the European Convention on Human Rights.

He asked the court for an immediate remedy and to compensate his client who is being held under preventative arrest.