Issue link: https://maltatoday.uberflip.com/i/997322
5 NEWS maltatoday | SUNDAY • 24 JUNE 2018 authorised directly by the Home Affairs Ministry, as mandated by law. The Constitutional applica- tion questions whether the discretion enjoyed by the min- istry in such decisions consti- tutes a violation of the separa- tion of powers, whereby the administrative law enforce- ment sector is supposed to be fully autonomous and inde- pendent of political interfer- ence. Moreover, the absence of judicial scrutiny casts doubt over the integrity of the entire process, the lawyers said. The blanket secrecy surrounding this procedure goes against the legal principle of 'equality of arms', which requires that there be a fair balance between the opportunities afforded the parties involved in litigation. Debono, Cachia and Scerri Herrera also argued that the legal infrastructure governing such surveillance methods is itself flawed. Unlike its equiv- alents in other EU member states, Maltese law does not distinguish between phone records used only for criminal detection purposes, and re- cords presented as evidence by the prosecution in court. Nor does it provide clear param- eters for when and how the technology may or may not be used. They, therefore, asked the court to declare that the hold- ing of service provider data and all access and use by the police is illegal. In comments to MaltaToday, Franco Debono outlined that there may be serious ramifica- tions... not just for analogous cases, but also for the broader issues of democracy and fun- damental human rights. "The issues we raised are concerns that affect every Mal- tese citizen, since we are here dealing with an alleged breach of two of the most sacrosanct of fundamental human rights: the right to privacy, and the right to a fair trial," he said. "As can be seen from various European Court of Human Rights cases, the grievances raised have been considered a threat to democracy even in the context of a lack of sepa- ration of powers, and the lack of transparency or adequate mechanisms of scrutiny when we are dealing with basic hu- man rights." The Constitutional applica- tion refers specifically to three rulings by the ECHR. In Lean- der vs Sweden, the Strasbourg court noted that "there is the risk of undermining or even destroying democracy on the grounds of defending it"; while in Weber and Saravia vs Ger- many, the ECHR ruling high- lighted "the risk that a system of secret surveillance for the protection of national secu- rity may undermine or even destroy democracy under the cloak of defending it." Lastly, in Lamber vs France the ECHR observed that: "the rule of law implies, inter alia, that interference by the execu- tive authorities with an indi- vidual's rights should be sub- ject to an effective control." Such control, Debono and his colleagues contend, is lacking in the local legislation. "At present there is no trans- parency, no accountability in the process, and above all no mechanism to ensure scrutiny by an independent body. This would be a problem with any law, let alone one which im- pinges so heavily on two such important rights: the right to privacy, and the right to a fair trial." Separately, the procedure may even give rise to discrimi- nation in individual cases. "If the police are investigat- ing more than one suspect over the same crime: on what grounds do they decide to tap Suspect X's phone, but not Suspect Y? There may be reasons, but the law has to be clear on the parameters within which this technology is used. Even because, in a system so politically charged as ours, there may conceivably be abuse." Nonetheless, Debono con- cedes that these issues must be counterbalanced by the State's duty to uphold and enforce the law "There is a balance to be struck here, as there is in any country where these two rights seem to collide. We're not asking for a re-invention of the wheel: in other jurisdic- tions, there are safeguards and precautions that are lacking in the local scenario. Our argu- ment is that, in a healthy de- mocracy, the rights of citizens are just as important as the State's prerogative to investi- gate crime. This should be re- flected in our legislation." Asked to account for why, in his view, the system is so flawed, Debono pointed out that Malta's law on phone- tapping – like so many other articles of legislation, was lift- ed from various other sources, and adapted haphazardly to the local legal landscape. "We see this is in other laws, too: there is a tendency to cherry-pick parts from here and there, and assemble them however we see fit. Naturally, Malta's legislature is free to draw up laws suited to its own context... but we cannot lose sight of the purpose of those laws, and the sacrosanct prin- ciples to which they have to adhere." Effectively, the present sys- tem has been in place for a number of years: suggesting that many previous prosecu- tions may have been vitiated on the same grounds. If the Constitutional Court upholds this application... would it re- sult in past convictions being overturned? "As lawyers, the most we can do is present our case to the courts; it is up to the Con- stitutional court to decide, and naturally, we will bow to its decision. In the event of a positive verdict [for us], how- ever, there may well be rami- fications on past convictions, and also on pending cases. However, the broader impli- cations would be that Maltese legislation would have to be revisited. If our application is upheld, it would imply that the procedure is unconstitu- tional, and therefore illegal. The law would, therefore, have to change." 20mm All round Bleed DRAGONFLIES AND DAMSELFLIES OF THE MALTESE ISLANDS DRAGONFLIES AND DAMSELFLIES OF THE MALTESE ISLANDS Charles Gauci Dragonies are large, oen brightly coloured, insects which few people would not notice actively ying over water, whether it is while walking along water reservoirs in valleys or while visiting gardens where water features are present. However, these are only one stage in their life cycle aer having spent a much longer period living under water as larvae. Most species of dragonies and damselies are highly habitat specic in both their larval and adult stages. e Maltese Islands lack most types of riparian habitats and as a result the number of species found locally is very small. is is compensated for by the high concentration of these insects at most water bodies. is book describes each of the nineteen species recorded in the Maltese Islands and each species is amply illustrated by photographs which, for the commoner species, illustrate most or all the stages in their life cycle. It is hoped that besides being of help and interest to nature lovers, it will also raise a much needed awareness among the general public about biodiversity and nature conservation,. e author spent fourteen years teaching Integrated Science and Biology at secondary State schools before moving to the Għadira Nature Reserve where he was Managing Warden until his retirement twenty four years later. He has been interested in dragonies for the last ten years. Having been an avid bird watcher since his early teens, he co-authored a number of ornithological books – Bird Studies on Fila, L-Agħsafar, A Guide to the Birds of Malta, A New Guide to the Birds of Malta and e Breeding Birds of Malta. He also co-authored several ornithological papers and was the editor of BirdLife Malta's scientic journal 'il- Merill' from 1986 to 1994. Since his initial interest in dragonies in 2008 he has been so fascinated by these wonderful insects to the extent that they now oen take precedence over birds. ISBN: 978-99957-894-0-4 Charles Gauci P R E-P U B LI CAT I O N O FFER MediaToday is pleased to o er a pre-publication o er of €15.00 (original price is €20) including packaging and postage of the full-colour hardback edition of Dragon ies and Damsel ies of the Maltese Islands by Charles Gauci published by Birdlife Malta. The pre-publication o er is valid until 27 June 2018 and is only available to residents of Malta and Gozo. Please send a cheque addressed to MediaToday, Vjal ir-Rihan, San Gwann together with your name, address and contact number At present there is no transparency, no accountability in the process, and above all no mechanism to ensure scrutiny by an independent body