Repubblika will be basing their constitutional challenge to the new law governing magisterial inquiries on the EU’s “non-regression principle”, which stops member states from taking regressive steps in the rule of law.
After parliament passed the controversial bill on Wednesday, the NGO’s president Vicki Ann Cremona immediately declared they would challenge the law in the constitutional court.
She was speaking at a protest organised by Repubblika in front of parliament, minutes after the bill was voted through by government MPs.
Asked on what basis they would be contesting the legislation, a Repubblika spokesperson said the organisation is preparing a case that cites Maltese and European jurisprudence.
“We have already laid the groundwork for the challenge when we filed a judicial protest against the bill,” the spokesperson said.
The law is controversial for a number of reasons.
A major criticism is that citizens will no longer be able to go directly to a magistrate to request an inquiry but will first have to approach the police. And critics accuse the police of largely failing to take action over suspicions of corruption.
If the police do not act, citizens can then take their case to a judge, who will decide if an investigation is merited.
Secondly, the amendments will require an unreasonably high standard of proof for an inquiry to be opened, Repubblika and others charge.
In their protest filed last month, the NGO argued that the law breaches citizens’ rights, EU law and the constitution.
Citing their own 2021 court case against the prime minister in the European Court of Justice, Repubblika invoked the “non-regression principle”.
“The European Court made it clear that, where the rule of law is concerned, it is not permissible for a member state of the European Union to take steps backward instead of forward,” the protest says.
They also argued that EU law imposes obligations on member states to uphold the rule of law, democracy and justice.
Repubblika quotes EU law which says that “member states shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law”.
And Malta’s constitution clearly states that parliament must create laws that adhere to European law, rendering the new law in breach of the constitution, the NGO argued.
“Access to justice is an essential element for the protection of justice and, therefore, for the protection of the rule of law,” according to the judicial protest signed by lawyer Jason Azzopardi.
Repubblika believes the law violates the constitution in another way. Because the supreme law of the land holds that Malta is a “democratic republic founded on work and on respect for the fundamental rights and freedoms of the individual”, laws that undermine democracy are unconstitutional.
Furthermore, the constitution says that parliament should legislate for “peace, order, [and] good government” which respects human rights, international law and the European Union treaties.
“Since, if adopted, Bill Number 125 (the magisterial inquiry law) would in itself constitute a breach of European law, it follows that its very adoption would automatically constitute a breach of Article 65 of the constitution.”