In the Sunday Times of Malta, Justice Minister Jonathan Attard writes on the changes to the law governing magisterial inquiries: “This reform stands as a testament to our commitment to justice, transparency and the rule of law.”
The minister and Robert Abela could have been deemed genuine when making such a statement had they toiled to ensure all institutions did what they were bound by law to do.
Former chief justice Silvio Camilleri saw it coming when, in late 2017, he harped on the need for the police, the attorney general and the courts to all exercise their authority to enforce the law.
More recently, the judiciary, including the sitting chief justice, spoke of the justice system collapsing.
So, how can the justice minister try to have us believe this latest move is aimed at paving the way for a more just and equitable society and judicial process?
What annoyed Abela and made him demand the changes was lawyer and former Nationalist MP Jason Azzopardi’s success in putting in motion formal inquiries into suspected wrongdoing.
Azzopardi made use of a tool that had been on the statute books for a good two decades. Private citizens or civil society may not have resorted to it that much in the past possibly because many still trusted the institutions, including the police. But that has changed.
Those seeking a magisterial inquiry must now first go to the police who will have to establish whether there is sufficient evidence to establish that a crime has occurred. They will then decide whether to pursue prosecution or to request a magisterial inquiry.
For John Citizen, that sounds rather odd because, as the law stands, a magistrate receiving a request for an inquiry will first have to determine whether there is a case.
The Nationalist Party said it was scandalous that the government is also proposing that it should be the citizen who investigates, collects and presents evidence before the authorities.
Government now appears to be afraid of the truth when the judiciary steps in where the police have failed to do their duty.
So, what the government is proposing reeks more of an attempt to introduce a ‘safety valve’, lengthen the process during which crucial evidence can be lost or destroyed and, perhaps, even discourage a person genuinely worried about something that looks wrong.
The government – and recent dark episodes explain why – may feel more comfortable having the police deal with such requests.
It is futile for the government to try to ride on recommendations made by different quarters and bodies, including the Venice Commission. It fails to point out it was also the Venice Commission that had criticised the “rushed” adoption of rule-of-law reforms in 2020 to cut short wider consultation about the changes. Just as the government is doing in this case.
A government elected on the mantra of transparency, accountability and meritocracy now appears to be afraid of the truth when the judiciary steps in when the police have failed to do their duty. And let’s face it – there have been too many examples of the police appearing reluctant to act on major cases of corruption.
Reducing the ability of the judiciary to carry out a timely and accurate investigation – through time limits or by adding new prerequisites – is nothing more than undermining the rule of law.
No doubt, the government has a distorted notion of the rule of law, equating it to rule by or according to law. Even dictators rule by and according to law.
The rule of law is something higher and more complex than just positive law. Lord Denning quoted Thomas Fuller before him when he said, in a high-court ruling against the attorney general: “Be you ever so high, the law is above you.”