One claim stands out among the extraordinary things the government says about its plan to weaken the right of private citizens to request a magisterial inquiry.
Jonathan Attard, the justice minister, says it draws on legislation in continental Europe, particularly France.
This claim is different from the rest. Much of the government’s language is Orwellian. It deforms the current law but calls it reform. The curtailing of a right is called enhancement.
Obstructing the investigation of ministers and high-ranking civil servants is called the protection of citizens. People behaving like feudal overlords are described as victims. Calls for accountability and transparency are called witch-hunts.
The Orwellian language is grotesque fantasy but the laws of France belong to the world of fact. They can be checked.
France does indeed require a police report to be filed before a private citizen can go to a judge and request an inquiry. That much is similar to the bill before parliament. And there the resemblance ends.
Robert Abela wants a six-month period for police investigation; France gives three.
Abela wants ordinary citizens to provide evidence that’s admissible in court; France does not require court-grade evidence.
But there’s more and it’s a real beauty: in France, for corruption and fraud you can file a request directly with a judge without going to the police first. Under French law, Jason Azzopardi could continue filing requests exactly as he is doing now.
Our current law resembles that of France much more than Abela’s deformity does. We already are in line with continental Europe. The government wants us to drift away but calls it getting closer.
The justice minister says continental legislation was adapted to the Maltese context. Which context is that? The one where several senior police officers have been accused of corrupt behaviour? There’s evidence to suggest that, between them, they meddled in, stalled and sabotaged major investigations, endangering the lives of fellow officers.
Does this context justify taking the three months that France allows its police and doubling it to six? Does it justify forcing someone to go to the police first, given the evidence of multiple instances of collusion with the target of investigation?
Faced with outrage, the government says the bill was part of its electoral programme. No, it wasn’t. Pledge 872 speaks (vaguely) only of enhancing the resources of inquiring magistrates. There is nothing about revisiting the right to request an inquiry. Had the Labour campaign promised that, all hell would have broken loose.
They clearly dreamt up the bill after the election. It is a tactical response to Azzopardi’s multiple requests for inquiries. The bill is shamelessly retroactive, cancelling the requests he filed last year.
They say Azzopardi is being abusive but fail to point out where. They call him a serial liar but he’s filed his requests under oath. His freedom is on the line if he’s caught committing perjury.
Only an inquiry, with its legal powers of search and seizure, can determine the truth- Ranier Fsadni
The completed inquiries he helped trigger have all led to prosecutions being recommended. If anyone is being prosecuted unjustly, that is the fault of the attorney general. Azzopardi doesn’t decide if prosecutions even take place, let alone select who is prosecuted.
Let’s call the bill by its proper name: the ‘Catch Us If You Can’ law. It’s designed to make it more difficult to expose significant corruption. The insistence on court-grade evidence might have prevented scandals like the Electrogas and Vitals deals from being investigated.
Those inquiries were triggered on the basis of journalistic investigations. They provided compelling prima facie evidence but not necessarily evidence that would have been admissible in court. The journalists have been vindicated by the subsequent inquiries, but if the government’s bill had been in force the inquiries might never have got going.
That, of course, is why the government is pushing this bill. It doesn’t just want to handicap people like Azzopardi. It also wants to turn media watchdogs into pussycats. First, deny them freedom of information; next, if they somehow still expose you, minimise the chances of their revelations being used to trigger a judicial inquiry.
Other jurisdictions allow for a lower standard of evidence. There’s a good reason. In advance of a magisterial inquiry, you cannot be sure if hearsay or journalistic investigation is reliable. You might find it compelling; but only an inquiry, with its legal powers of search and seizure, can determine the truth.
The bill will also make it trickier for direct evidence to be accepted if it’s acquired through leaks. It’s not illegal for journalists to receive leaks but the leaker is usually breaking the law. The bill opens the path for a judge to say that the evidence is inadmissible because it was gathered illegally.
However, the bill cannot control everything. Our rights have a last line of defence. Judges have discretion on deciding what counts as admissible evidence.
In European and North American jurisprudence, circumstantial evidence can be treated as more compelling than direct evidence, if there’s enough of it. The European Court of Human Rights in Strasbourg has sometimes admitted even hearsay as evidence. And judges are increasingly prone to accept illegal leaking as admissible evidence, if it serves the public interest.
Therefore, even with the bill in force, it should be possible for a principled judge to consider the evidence that led to, say, the Electrogas and Vitals inquiries, as court-grade and sufficient to trigger an inquiry.
However, by the time judges begin the inquiry they might find there is little evidence to be preserved – if the preceding police investigation was corrupt. We shall see.
One thing is clear. The Labour government was never serious about cleaning up its act. It just wanted time to regroup before carrying on with its pillage.