Court rules Attorney General's discretionary powers unconstitutional

The Attorney General's discretionary powers to decide whether a case is heard before a magistrate or a jury, thus significantly varying the severity of the punishment handed down, was again held as being in violation of the accused's human rights, the Constitutional Court ruled.

On 19 December 2010 the police were tipped off about a drug deal in Hal Tarxien. Arriving on site, officers found six youths in two vehicles. One of them, Franklin Orsini, was found to be in possession of a small piece of resin, suspected to be cannabis. A bag containing 1000 ecstasy pills was found inside the car near Orsini's feet. During investigations, the accused released a statement explaining how a friend of his asked him if he knew anyone to sell him drugs. Orsini then approached the other five youths and met them in Hal Tarxien when the police busted their deal.

The six were charged with drug possession in circumstances which show it was not for their personal use. Through his lawyers, Franklin Orsini argued that the Attorney General's discretion was unfair and breached his rights.

"When the Attorney General decided that a person should be tried in the superior courts, punishment could vary from four years in jail to life imprisonment. In contrast, a maximum of 10 years or a minimum of six months can be handed if one appeared before the Magistrates' Court," the lawyers said.

Mr Justice Tonio Mallia ruled it was not correct that people who were charged for the same crime end up with different punishments without the courts having any discretion.

"The Attorney General issues the charges yet simultaneously sets the parameters of punishment to be mitigated. The rule of law regarding a fair trial does not permit this as it violated the rights of the accused", the judge concluded.

Judge Mallia ordered that the judgement is inserted in the acts of Orsini's criminal case and brought to the attention of the Criminal Court.

Lawyers David Camilleri, Veronique Dalli and Joseph Gatt appeared for the accused.