Updated 12.15pm with Zammit Lewis comment
Proposals to “severely curtail” the rights of ordinary citizens to trigger a magisterial inquiry could fall foul of EU law, former opposition leader Simon Busuttil has warned.
A lawyer specialised in EU affairs, Busuttil said the legal changes proposed by the government are a regression in existing rights, something which is protected by EU law.
In an opinion piece for Times of Malta, he said EU treaties not only safeguard the rule of law but also provide remedies to ensure its effective legal protection.
Busuttil's claims were sharply rebutted by Labour MP and former Justice Minister Edward Zammit Lewis, who challenged Busuttil to "cite a single European Court of Justice judgment that states what he claims."
Parliament is set to debate the proposed reforms on Tuesday, after Labour’s parliamentary group fast-tracked the bill. If enacted, it would dramatically change how citizens can request a magisterial inquiry, directing them to approach the police first.
Prime Minister Robert Abela announced the proposed changes in December, following a flurry of requests by lawyer Jason Azzopardi to investigate government ministers. Abela said the reform would prevent inquiries being used as a “tool of persecution”.
But concerns have been raised by the opposition, civil society and professional bodies about the government proposals, which would make it harder for people to trigger magisterial inquiries like the one that led to the prosecution of ex-prime minister Joseph Muscat on corruption charges.
Ex-chief justice Silvio Camilleri last week said the reforms only serve to shield politicians and their persons of trust from investigation. On his part, Busuttil characterised the reforms as one of the most serious backslidings 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.”
Busuttil said none of the corruption scandals would have been investigated, let alone prosecuted, had it been left to the police or attorney general.
“They only ever acted because they were pressured to do so – by us, common citizens,” Busuttil said.
Potential legal battle ahead
Those seeking to challenge the government’s proposals could find solace in the European Court of Justice.
Busuttil said an April 2021 judgment by the court established the principle of non-regression, meaning EU countries cannot introduce laws that weaken the rule of law.
The principle was established in a case filed by rule of law NGO Repubblika in Malta about the way judges and magistrates are appointed.
Busuttil said 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 EU countries, including Malta. He said the constitution specifically states that parliament can only adopt laws that conform with Malta’s obligation as an EU member state.
A law that appears set to fall foul of both our constitution as well as our EU obligations
“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,” Busuttil said.
Repubblika president Vicki Ann Cremona hinted that the NGO is ready to fight the proposed law in every available fora. She said the European Commission should vigorously assess the situation and act accordingly.
Cremona said the priority in the meantime is to persuade the Maltese authorities to see sense and open a process of national dialogue. She said more people and organisations are expressing dismay at the government’s rush.
“A national conversation should have the effect of reaching a consensus on how to improve our country’s ability to fight corruption and organised crime while respecting and enhancing rights currently enjoyed by citizens,” she said.
“We have not given up on that objective. Should the government ignore all calls for dialogue we will have to consider all options available to us at law.”
Zammit Lewis: Busuttil claims not backed up by case law
In a post on Facebook, lawyer and Labour MP Edward Zammit Lewis said Busuttil's claims were not backed up by European case law.
Zammit Lewis said the non-regression principle cited by Busuttil was established in an ECJ case which NGO Repubblika lost against the Maltese government concerning judicial appointments, he said.
"I invite the 'expert' Busuttil to state how this reform violates that principle, when every sentence issued after Repubblika v Malta, especially those concerning Poland and Romania did not delve into the system of inquiries. The EU only found breaches when the independence and impartiality of the judiciary was affected - something this reform certainly does not impact," he wrote.
Zammit Lewis - a former justice minister who last year sought to be appointed a European General Court judge - added that Busuttil should "cite at least one European Court of Justice judgment which states what he claims about inquiries amounting to 'rule of lack backsliding'."