A government bill to reform the way magisterial inquiries are requested and conducted may be well-intentioned, but the draft leaves much to be desired, the Chamber of Commerce said. 

It said while the bill includes a number of positive elements, "there are other elements which require a whole rethink."

The reform is due to be fast-tracked, with the Labour Party announcing it will bring the proposed reforms to parliamentary debate on Tuesday.

Positive elements include:

• Having a pool of magistrates dedicated solely to carrying out inquiries,
• Giving the victims who are subjects of a magisterial inquiry the right to be informed of the stage of the proceedings of the inquest,
• Giving the heirs and relatives of victims of accidents who are subject of a magisterial inquiry the right to request an electronic copy of the proces-verbal at no cost,
• Conveying onto the magistrate the discretion to impose the costs of the inquest on the initiator, if in the opinion of the magistrate, it was frivolous, vexatious or abusive of the judicial process,
• Provisions to facilitate the work of authorities who have investigative responsibilities in case of accidents.

But the chamber said the bill also contains a number of provisions that need to be reconsidered and corrected.

Currently, it pointed out, a private citizen may either lodge a report, information or complaint with the police or request a magisterial inquiry. Under the bill, the right of a private citizen to request a magisterial inquiry is being removed. Instead, a private citizen must first approach the police and can only request the opening of an inquest after six months after making the initial report, information, or complaint.

"In the quest for truth and justice, it is important not to restrict our citizens' ability to request magisterial inquiries on matters of public interest or to limit magistrates' discretion in following leads," the chamber said.

The chamber said it agreed that the person lodging the request should do so on oath and include the alleged criminal offences. However, it did not agree with the increased level of burden of proof imposed on the initiator.

The bill requires the person lodging the request to submit “admissible proof as evidence before a court of criminal jurisdiction that shows on a balance of probabilities that the crime may have been committed by a suspected person”.

But the chamber said that a private citizen has limited access or no access to evidence which goes beyond prima facie. Under the current law, the inquiring magistrate can act on prima facie evidence and the police can act on anonymous tips in a number of criminal instances. Placing the onus of providing hard evidence on private citizens who lack the means and the rights of access to pursue investigations privately is tantamount to obstructing justice.

"It is the role of the inquiring magistrate to determine what evidence needs to be sought and to instruct the Police to carry out the necessary investigations if the quest for truth and justice so warrants," the chamber insisted. 

It added that since crime is becoming more complex, magistrates should not be limited to relying solely on local expertise. "While a foundational understanding of criminal law principles is necessary, requiring experts to possess knowledge of Maltese criminal law and restricting them to local charge rates could potentially exclude valuable international expertise," it said.  For instance, financial crimes were highly complex and often had an international dimension – while local knowledge on investigating such crimes is growing, it may not always be enough.

Furthermore, the bill stated that an expert had to be a natural person and could not be a juridical person." Many experts, both local and foreign, worked for an entity, the chamber said. While engaging them in their personal capacity ensures that they can testify if the entity ceases to exist, one must keep in mind that there are a number of experts who cannot take on assignments (on which they will be personally working) without the involvement of the entity they work for," the chamber observed. 

In other points, the chamber said retroactivity should not be applicable in the bill. .

It insisted that the legislator must ensure that every legal amendment strengthens the process by which crime is suppressed and where those involved in criminal activities are brought to justice.

It warned that undue haste in enacting this bill would only serve to fuel suspicion and detract from meaningful consultation on matters of national importance.