Prime Minister Robert Abela wants to ram through parliament legal changes that would severely curtail the right of citizens – our right – to ask for a magisterial inquiry whenever we suspect that a crime has been committed.
The prime minister would do well to reflect carefully before putting our country on this slippery slope because there is a serious concern that this would be illegal under EU law.
The changes, presented in Bill 125, constitute one of the most serious retrograde steps – backsliding – for the rule of law in Malta in the past decade.
Suffice it to say that all corruption charges brought against high-profile people in government to date – including on Vitals and now on Electrogas – were first triggered by individual citizens. This is thanks to our existing law that allows each and every one of us to go to court to ask a magistrate to investigate a possible crime, to preserve evidence of the crime and to recommend action to be taken.
None of the corruption scandals would have been investigated, let alone prosecuted, were it for the police or the attorney general. They only ever acted because they were pressured to do so – by us, common citizens.
For this reason, the right of citizens to trigger magisterial inquiries is truly a bulwark in the protection of the rule of law in Malta. By curtailing it, the prime minister will make it harder to investigate and prosecute corruption of his own government and will continue to entrench the culture of impunity.
There are many worrying limitations to our rights that the prime minister wants to push through in Bill 125. Let me limit myself to three.
Firstly, citizens would no longer be able to go directly to court as we do now. Instead, we would be obliged to first ask the police to investigate a suspected crime and wait for six months.
But we all know that, in recent years, the police have established a track record of failing in their duty to investigate corruption, with senior officials accused of leaking information, colluding with suspects or even jumping straight into bed with criminals.
So it is hardly reassuring that we will now be obliged to go to the police to ask them to do their job. More so, on corruption cases which would have been widely reported in the media and on which no apparent action would have been taken.
Secondly, with this new law, after the six months, citizens can only go to court with evidence that is strong enough to stand in court. This limitation is disproportionate because citizens do not have the legal power or the resources to investigate crime and should not be expected to do the job of the police. Indeed, if this requirement were already in place, neither the Vitals nor the recent Electrogas inquiries would have been possible.
Thirdly, the new law would expose citizens who trigger magisterial inquiries to prohibitive financial penalties consisting of the costs of the inquiry. This would have a serious chilling effect totally discouraging anyone from requesting inquiries in the first place.
None of the corruption scandals would have been prosecuted were it for the police or the Attorney General- Simon Busuttil
There is therefore no doubt that the legal changes proposed by the government constitute a weakening, rather than a strengthening, of our rights.
Indeed, by the prime minister’s own admission, this law is intended to curb what he terms as “abuse” by citizens who ask for magisterial inquiries. Yet, the existing law already prevents abuse because requests made by citizens can be thrown out by the court if it finds no prima facie evidence of a crime. In fact, a number of requests were dismissed by the court for this very reason.
The prime minister also revealed that, over the past decade, citizens only used the right to request a magisterial inquiry 25 times out of a total of 8,000 inquiries. The very limited number of requests shows that, if anything, citizens have used this right very sparingly, precisely when they felt that no action was taken by the authorities. This is hardly an abusive use of a right.
The legal changes proposed by the government therefore constitute a regression in our existing rights and they limit our remedies to ensure effective legal protection.
This is where EU law comes in.
EU law requires us, under article 2 and 19(1) of the Treaty, not only to safeguard the rule of law but also “to provide remedies sufficient to ensure its effective legal protection”.
Moreover, in a celebrated judgment decided in April 2021, coincidentally in a case filed by Repubblika in Malta, the European Court of Justice (CJEU) established the so-called principle of non-regression. This principle means that EU member states cannot introduce laws that weaken the rule of law.
The CJEU said that: “A member state cannot amend its legislation in such a way as to bring about a reduction in the protection of the value of the rule of law.” (paragraph 63).
The principle of non-regression has been confirmed in subsequent judgments and has since become a principle of EU jurisprudence that needs to be observed by all member states, including Malta.
It also bears reminding that our own constitution specifically states, in article 65, that our parliament can only adopt laws that are “in conformity with full respect” of our obligations as an EU member state.
The Maltese government would do well to remember this before bulldozing through a law that appears set to fall foul of both our constitution as well as our EU obligations.
Simon BusuttilSimon Busuttil is former opposition leader.