The justice minister who codified the citizen’s right to request a magisterial inquiry 18 years ago said the existing framework already has enough safeguards to prevent misuse, after Robert Abela pledged an overhaul to prevent “abuse” of the system.

The law allows private individuals to file a request for the courts to investigate an alleged criminal act without involving the police.

However, the prime minister promised to reform the system earlier this month citing “abuse” and explicitly naming former Nationalist MP Jason Azzopardi, who has requested several inquiries.

Tonio Borg, who was PN justice minister when the right was explicitly written into law, listed several safeguards that prevent a magisterial inquiry from being weaponised.

One safeguard is that magistrates are not obliged to investigate following a private citizen’s request, meaning they are the first line of defence against potential “abuse”, Borg said.

“Another safeguard is that when the magistrate chooses to proceed, the person under investigation has the right to appeal the magistrate’s decision in court,” he added.

Reform

Furthermore, when a magistrate concludes an investigation, the attorney general decides whether to prosecute, so another person can eventually stop proceedings, he observed.

Borg said that even if both the magistrate and the attorney general believe there is a worthwhile case, it is, ultimately, the criminal court that decides whether the person is guilty or not.

Abela said earlier this month people like Azzopardi are “abusing the system” and told Justice Minister Jonathan Attard to reform the way magisterial inquiries are conducted.

Asked to give more details, Attard said the reform would mean involving the police more and “exhausting other remedies” before a citizen can ask a magistrate to open an inquiry.

“The reform aims to enhance the streamlining of the process and the involvement of all institutions, particularly the police, which have increased their investigative role following the transfer of prosecution responsibilities to the office of the attorney general,” he said.

“In this regard, an important aspect to consider is the exhaustion of other remedies before a citizen approaches a magistrate with a request for an inquiry,” he explained.

Efficiency

The minister said the reform will “enhance the quality and efficiency of the process, provide greater rights to the families of victims, introduce accountability in the appointment of experts and increase the responsibility of parties involved in inquiries held at citizens’ request.

“It is important to remember that the Maltese courts have been clear in their pronouncements that a magistrate’s inquiry should never devolve into a fishing expedition,” Attard said.

The reform will be a priority in the new year, he said.

News of the reform came after Azzopardi filed an urgent request for a magisterial inquiry into an alleged criminal racket he says Gozo minister Clint Camilleri and his wife were aware of.

New request

The racket, according to Azzopardi, involved third parties handing out government jobs and/or greatly sought-after mooring spots at the Mġarr harbour in return for cash kickbacks and other gifts.

Just days later, Azzopardi made a similar request: for a magistrate to investigate the Gozo minister over a road in Gozo that went over budget by €10 million.

Hours after Azzopardi’s first claim, Abela said Azzopardi had “crossed a line”, was “abusing” the system and dragging people “through a Calvary of judicial proceedings for nothing”.

He said he “asked the justice minister to finalise a reform of magisterial inquiries without delay, so this abuse can be stopped”.

The right for citizens to request a magisterial inquiry was officially enshrined into law in 2006 by a Nationalist government. But, in practice, the tool was already available, as nothing in Maltese law prevented a magistrate from investigating an alleged crime following a citizen’s complaint.

2003 claim

In fact, in 2003, for example, Labour MP Carmelo Abela, who was education shadow minister, had requested an investigation into the Foundation for Tomorrow’s Schools, the government entity tasked with building schools over alleged financial.

That inquiry, led by then magistrate (now judge) Consuelo Scerri Herrera, found violations of public sector procurement regulations, which did not constitute a crime in terms of law.

When introducing amendments to the law in 2006, Borg had faced criticism over a proposal that would have required a magistrate to get permission from the chief justice before taking on an inquiry at a citizen’s request.

The proposal was eventually dropped from the bill and never made it to the statute book.

“The government will be subjected to the same barrage of criticism with which then justice minister Tonio Borg was bombarded when, in 2006, he wanted to limit by stealth such inquests requested by private individuals,” lawyer and former Nationalist MP Franco Debono said when asked about the reform mentioned by the prime minister.

In 2011, Debono had proposed several justice reforms, including on magisterial inquiries, that were eventually adopted.

Nothing to add or mess with - Franco Debono

Debono said the safeguards within the legislation related to citizens requesting inquiries go beyond those that apply when the police make such requests.

Lawyer Franco Debono.

“In my opinion there is nothing to add or mess about with,” he said.The safeguards in place include a requirement that a complaint clearly designates the person suspected of having committed the offence. The magistrate handling a request must inform those suspected of committing a crime they are being investigated and allow them to reply to allegations.In Debono’s opinion, the government’s decision to reform the inquiry system “was probably a knee-jerk reaction and I am not seeing any place for legislative intervention without exposing the government to a barrage of valid criticism”.“⁠In these situations,” he added, “it is rather an issue of political strategy rather than legislative fiddling for, if the government is being bombarded by inquests and it is not in a position to neither defend its soldiers nor provide sufficient ammunition to hit back at its adversaries firing inquests, then, some should be calling it a day rather than indulging in legislative fiddling.”