Opinion: The court found a violation of rights, so why is no one accountable?

The Labour Party’s channel, ONE, recently trumpeted a court decision as a victory for the government, claiming that the detention of migrants on Captain Morgan and Supreme Cruises boats during the pandemic did not breach their rights.

So why, then, did the court award nine migrants €20,000 in compensation to be paid by the State Advocate? And why is the government appealing the case if it was exonerated?

The court found that those nine migrants were deprived of their freedom in breach of Article 34 of the Constitution of Malta and Article 5 of the Convention for the Protection of Human Rights.

It found they had been subjected to degrading treatment while on those ‘pleasure boats’.  It found that their dignity had been violated.

ONE News boasted that Prime Minister Robert Abela was cleared of all responsibility and celebrated Minister Byron Camilleri’s exoneration. But how can a court acknowledge that migrants’ rights were violated yet absolve the very officials who orchestrated their detention?

Abela, who regularly brags about making decisions, shifted all the blame onto his Cabinet.  He protested that he wasn’t the one who made those decisions to put over 400 migrants on boats without beds and with only a handful of toilets and showers.

Abela chickened out. It wasn’t my decision, he told Judge Toni Abela; it was a collective decision of the government. And it wasn’t really our fault; it was the fault of Superintendent of Public Health Charmaine Gauci because she declared a public emergency during the Covid pandemic.

Minister Byron Camilleri’s excuse was even more pathetic – “we were living at a time when, as a government, we were taking hundreds of decisions every week.”

The former deputy leader of the Labour Party, Toni Abela,  was in a kind mood.  “This means,” he concluded, “that both of them (Robert Abela and Byron Camilleri) agree that these were government decisions taken collectively and not by one particular minister or particular department”.

Conveniently, he unearthed Article 181B of Chapter 12 of Malta’s laws, which states that “The government should be represented in judicial acts and actions by the head of the governmental department responsible for the issue in question”.

The Judge helpfully pointed out that “the minister isn’t the head of a governmental department” and therefore shouldn’t be held responsible.

The court decided that Permanent Secretary Kevin Mahoney, who “was truly involved in many of the circumstances of this case,” shouldn’t be held responsible either. The judge reasoned that Mahoney simply followed the government’s collective decision.

The guilt was shoved onto the State Advocate because “he is the one who represents the State in those judicial acts or actions that because of the nature of the request cannot be blamed on one or more heads of governmental departments”.

“Therefore”, the Judge concluded, “except for the State Advocate, the others (Robert Abela and Byron Camilleri) are being exonerated”.

The next time Abela brags about taking bold decisions, remember how he threw Charmaine Gauci under the bus to save his own skin.  Remember how he shifted responsibility for his decisions onto his cabinet, and how responsibility for breaching the Constitution was dumped onto the State Advocate.

That’s not how true leaders behave – that’s what cowards do. But that’s Abela – always ready to pin the blame on anybody, always eager to dump others into boiling water while he wriggles free.

The details of this case reveal the callousness with which those migrants were treated. When they were transferred onto those ‘pleasure boats’, nobody told them why they were being placed there, for how long or what the government’s plans were.

At no stage were they informed of their rights to request asylum in Malta.  They were never given a detention order.

They had no contact with the outside world except for the few minutes when the captains of those boats switched on the wifi, and even then, the reception was so poor that communication was near impossible.  Some couldn’t even inform their relatives they were still alive.

They had no access to information or legal advice, no access to a court or tribunal to examine their situation or offer them any remedy.

Lawyers representing them weren’t allowed to visit.  A request for permission addressed to Minister Byron Camilleri sent on 6 June 2020 was never answered. Staff from the Agency for the Welfare of Asylum Seekers (AWAS) were not allowed on board to do their duty.  Not even representatives from UNHCR had access to those migrants.

Those detainees didn’t even know where they were, what would happen to them and how long they’d be kept on board.

The case reveals shocking details. There was absolutely no privacy, and sanitary conditions were terrible.  There were no beds, and migrants slept on the floor until they were given flat mattresses but no blankets to protect them from the cold at night, the sea spray and the wind.

After they complained, they were provided with sleeping bags. When some migrants became violently sick because of the rough seas, medical help took 10 days to arrive. The majority of them remained in the same clothes they were in when they left Libya 37 days earlier.

The last three days were the most brutal due to worsening weather. Waves battered the boats, which swung wildly, and toilets overflowed due to the pressure. Those migrants were constrained to bail out water but couldn’t keep up. The decks were flooded with seawater, making it impossible to sleep.

The court expressed its concern that those vessels weren’t meant to hold so many people.  It said that migrants “used to sleep like sardines with seawater soaking them”.  The court concluded that they were subjected to degrading treatment.

The State Advocate gets to carry the can, and the public pays while the rest walk away, absolving themselves of their own decisions.