In the space of a week, the government majority in parliament approved the first reading of Bill 125, which purports to “reform” the law regulating magisterial inquiries. Coincidentally, five individuals, whose roles in the commissioning of a gas-fired power station were the subject of just such an inquiry, were arraigned on charges of corruption.
The ombudsman submitted to the speaker a harrowing report on maladministration in the prisons between 2018 and 2022: maladministration that violated the law, denied human dignity and human rights to vulnerable people, and not infrequently had fatal consequences.
The speaker declined an opposition request to debate the report: that sent a profoundly disturbing message: the welfare of the most vulnerable does not merit parliament’s attention. Succeeding one another in the blink of an eye, these four events illustrated vividly the sinister twilight settling over civil rights in Malta.
The 17 Black inquiry and the ombudsman’s investigation into the prisons expand our understanding of the systemic weaknesses plaguing governance today, adding to the findings of other independent investigations. This institutional scrutiny documents the near-complete absence of effective professional and institutional checks on the discretion of ministers and their political appointees.
It is a falsehood to imply that the reports are malicious or rest on hearsay. Inquiring magistrates, the ombudsman and other state scrutineers are not hacks in search of scandal, or inquisitors intent on persecuting innocent victims; they have no axe to grind. Their work is subject to rigorous rules of procedure and evidence; it rests on decades of experience and expertise and is subject to judicial or parliamentary scrutiny.
In the words of anthropologist Jon P. Mitchell, public governance in Malta is perceived to operate as a “systemless system”, which is personalised and manipulated by the interests, intrigues, prejudices and whims of individuals who hold political office or have influence over office-holders.
More than two decades later, the evidence indubitably confirms the public perception.
The arbitrary power exercised by senior officials, especially politicians, derives from two sources – the broad, unregulated discretion systematically afforded by our laws to ministers, and the clientelism embedded in the Maltese psyche.
The consequences of the abuse of power are borne by a hierarchy of victims. Those who are most vulnerable on account of their ethnicity, lack of documentation, incarceration, mental illness, homelessness, employment on unsafe, unsupervised building sites, etc., lie in the bottom tier. The daily news documents their plight: deportation, death, chronic exploitation, detention in inhumane or dangerous conditions.
Inquiring magistrates, the ombudsman and other state scrutineers are not hacks in search of scandal- Edward Warrington
The next tier includes those who are subjected to systematic intimidation and demonisation: investigative journalists, civil society activists, lawyers challenging political or administrative impunity, trade union leaders.
Daphne Caruana Galizia belonged in this tier: she paid for it with her life.
The third tier comprises those who suffer from discrimination because of their real or imagined political affiliation, or their refusal to affiliate, or their exclusion from circles of power that dispense patronage: that’s a significant proportion of the population.
Arbitrary, corrupt power affronts the dignity and humanity of these people, denying certain fundamental rights and freedoms to those in the bottom and second tiers including, at times, the right to life.
The rest of us, who may only be occasionally inconvenienced by arbitrary power, might mistakenly believe that we are invulnerable.
Be alert: arrogant power-holders have insatiable appetites: they are not content to exploit, oppress or ignore the vulnerable; nor are they content to silence and isolate those who challenge their misdeeds; in time, they arrogate more and more of the public domain to themselves and set their sights on choice private goods – your business, for example. They are concomitantly anxious to secure impunity, to silence critics, to hide wrongdoing.
Bill 125 reflects that profound insecurity: it is unambiguously intended to quash what has become an effective instrument for investigating serious wrongdoing by the power-holders.
The citizen’s right to petition the magistrates’ court to undertake an inquiry affirms my participation and yours in public life; it offers us a role in safeguarding the peace, order and good government of Malta, for our own safety and for the general welfare.
It is not an instrument that can be abused because the existing law embodies safeguards that protect both magistrates and those accused of wrongdoing from frivolous, malicious or unfounded petitions.
Bill 125 is bad law: firstly, because it is based on the false claim that the magisterial inquiry is being abused; secondly, because it deprives citizens of an essential civil right; thirdly, because it circumscribes judicial independence; fourthly, because the procedures that it envisages are a mockery of due process and fair play; and, most importantly, because it will protect powerful individuals who pillage the public domain and others who exploit the vulnerable whose welfare our parliament will not debate.
In a well-functioning democracy, legislation heralds the creation of some addition to the general good. Bill 125 takes Malta a giant step closer to the sinister twilight gathering over our democracy.
Edward WarringtonEdward Warrington is a retired academic and a member of Repubblika’s executive committee.