In recent political history, Labour governments have consistently passed legislation to limit or block court scrutiny of their actions. On the contrary, Nationalist governments, starting with the incorporation in 1987 of the European Convention on Human Rights in Maltese law, have done exactly the opposite: submitting their own actions to review by a court of law.
Take the Blue Sisters case in 1980. Mr Justice Joseph Herrera valiantly ruled that a Labour government in 1980 had exceeded its powers and acted unreasonably when it attached to a Catholic hospital’s licence a condition to the effect that it could take over the entire hospital beds and facilities.
The government’s knee-jerk reaction was to pass a law in February 1981 precluding court review based on a reasonableness test. The government press release issued when the bill was published did not mince its words nor hide away its blatant intention: “Government is elected by the people and accountable to them; therefore, it has to be adjudicated above all by them and not by the courts. The practice that when anything which government does is disagreed with by someone, even by a single citizen, the court is made to intervene, should come to an end.”
This is Labour’s syndrome, idea and forma mentis as regards court scrutiny of its actions. Of course, when in opposition it argued differently. It was Labour MP Carmelo Abela who, under a Nationalist government, rushed to the duty magistrate requesting an inquiry into the operations of the Foundation for Tomorrow’s Schools for issuing direct orders, a practice which has become the rule rather than the exception under the current administration.
He did not go to the commissioner of police; indeed, the inquiring magistrate was not chosen by lot, as is the case under the current law enacted by a Nationalist government, but applied directly to the duty magistrate.
When, in 1986, two inquiring magistrates, following the atrocious murder of Nationalist Party activist Raymond Caruana and the criminal frame-up of an innocent man, namely Peter Paul Busuttil, decided to join forces and collaborate to conduct one investigation, a Labour government rushed through parliament a law to allow the attorney general to appeal from such a joint decision.
History is repeating itself. In 2006, a Nationalist government passed a law allowing any citizen to report serious criminal wrongdoing to the duty magistrate who, having established that there is prima facie evidence of such act, orders an inquiry to be held. The person investigated is informed and is allowed to appeal such a decision to the Criminal Court.
The law, therefore, has an inbuilt system of checks to prevent abuse of this right. It is up to the duty magistrate to decide whether there are grounds for an inquiry; such decision is subject to appeal by the person investigated; the result of the inquiry is sent to the attorney general, who may or may not start criminal proceedings; and if the attorney general does, it is a court of law which will ultimately establish the guilt or otherwise of the accused.
Now things will change for the worse. Today, one can report a wrongdoing to the police or knock on the door of the duty magistrate to trigger off an inquiry. This option is being eliminated. Everyone has to first report the case to the police and wait for six months before one can request the magistrate to start an inquiry.
History is repeating itself- Tonio Borg
Considering the lethargy and inertia of the police commissioner in investigating the powers-that-be, even when a magisterial inquiry found evidence of wrongdoing, one understands why private persons and NGOs have preferred not to waste time and go directly to present their case before an independent court of law. In certain cases, a court of law has refused such request. In others it has acceded to it.
The draft law, so pompously announced by a joint press conference between the prime minister and his justice minister, has also raised the bar for such inquiry to start. While the police can arrest any person even on reasonable suspicion – not evidence – that such person has committed a crime, now an inquiry can only start if the private citizen proves on the basis of probability that a crime has been committed by an individual.
This burden of proof is equal to that of a person starting civil proceedings before a court of law. This burden of proof is now being requested to trigger off an inquiry ‒ not criminal proceedings ‒ an investigation whose result is not even binding on the attorney general. To add insult to injury, this new burden of proof will be applied retroactively to any open requests for an injury.
Such a law gags the voice of the public and attempts to silence the whistleblowers of this world while protecting those who run roughshod of the law – in line with Labour’s tradition.
No democratically elected government should use the pretext that it is only accountable to the people.
As Lord Diplock once said: “It is not, in my view, a sufficient answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to parliament for the way in which they carry out their functions.
“They are accountable to parliament for what they do so far as regards efficiency and policy, and of that parliament is the only judge; they are responsible to a court of justice for the lawfulness of what they do, and of that the court is the only judge.”
The time has come to stand up and be counted. A government must understand, under a system governed by the rule of law, that it cannot use its parliamentary majority to reduce the rights that citizens currently enjoy to request a court to intervene in the face of abuse of power by the powers-that-be.
If this bill becomes law, every democratic means, including the collection of signatures for the holding of an abrogative referendum, should be used, to teach this government a lesson: do not play around with our rights.
Tonio BorgTonio Borg is a former European commissioner and deputy prime minister and a visiting professor at the Faculty of Laws of the University of Malta.