On January 18 I had respectfully criticised a judgment of our courts whereby the introduction by a Nationalist government in 2006 of the right of any individual to request the triggering off of a magisterial inquiry on facts known to him, which could amount to a criminal offence, was diluted to the point of insignificance, through stringent conditions for eligibility not applicable to others like the police and the Attorney General.
Until 2006, only the police or the Attorney General could request the opening of an inquiry by the judiciary. After 2006 any individual could file a report to the duty magistrate, and if prima facie there were grounds for the commencement of such an inquiry, the magistrate could give the green light.
That is what the Court of Magistrates did after Simon Busuttil requested such an investigation after the 2017 general elections. Unfortunately following an appeal by the persons against whom an inquiry was sought, the Criminal Court overturned this judgment stating that for an inquiry to be held, one had to practically produce iron-clad evidence that a crime had been committed.
I had queried this judgment since an inquiry is just that, an exercise in collecting evidence to see whether a criminal offence has been committed.
I am happy to state that on April 29, the Court of Magistrates has again affirmed its exclusive right to order the commencement of an inquiry when a private person or organisation requests it, without the need of more stringent conditions than those required of public authorities. And that is how things should be.
When in 2006, I, along with Carm Mifsud Bonnici, piloted this amendment, we wanted to grant to the public the right to bring to the attention of the courts any wrongdoing. It was then up to the courts to investigate such a matter and if it was decided that there were enough grounds for prosecution, send the report of the inquiry to the Attorney General who would then decide whether to prosecute the offender or not.
Ultimately, the courts of justice, and no one else, decide on the guilt or otherwise of the person charged.
This apparently simple procedure was turned on its head in the judgment of last January of the Criminal Court.
The 2006 law allowing private individuals and organisations to file a report for a magisterial inquiry to start is not a dead letter any more
The law has now been put again on the right track by last week’s decision. The entire purpose of an investigative inquiry is to establish the facts. It would therefore be begging the question, what in legal jargon is called a tautology (or petitio principi) to request the detailed facts beforehand, provided there is prima facie evidence.
So even evidence which would not be admissible in a criminal trial is considered to decide whether an investigation should start.
This is similar to what happens when the police arrest an individual on reasonable suspicion of having committed an offence. They can take into account hearsay evidence which would be inadmissible evidence in a trial, but acceptable for the police to determine whether to arrest an individual or not.
That is what was stated in the judgment of the Court of Magistrates delivered on April 29. It ruled that there should be no differential treatment to the prejudice of the private individual, compared with that afforded to public authorities. It decided that an inquiry is just that, and does not require the strict rules of evidence applicable in a trial proper.
We can all have a sigh of relief. In my January contribution I had written: “The possibility has been mooted of a fresh request for a magisterial inquiry. I see no reason why not… after all, till now we have had one member of the judiciary who gave a green light for such inquiry, and another who switched on a red light. A third might perhaps solve the issue.”
It seems that this has actually happened. The judgment of the Court of Magistrates goes into great detail on the nature of magisterial inquiries, and the right of civil society and any individual for that matter, to request an investigation. It also affirmed what the first magistrate had decided, namely that a report to a duty magistrate need not contain all the minutiae of the facts, but as far as possible spell them out and indicate the persons allegedly responsible.
Above all, it decided that the wording of the law, namely that the subject matter of a crime with each and every particular “shall be described” is a duty incumbent on the duty magistrate… and not the private individual.
Finally, the most serious error committed by the Criminal Court in its January decision, namely that the Panama Papers cannot ever give rise to an investigation (not a trial, just an investigation!) because they were the result of computer hacking, was dismissed.
All around the globe, governments have collapsed, ministers resigned on the basis of revelations made in the Panama Papers.
Thanks to the recent judgment of the Court of Magistrates, we have been spared further international embarrassment of being the only country where no judicial notice by the courts has been taken of the Panama revelations.
In this contribution of mine I did not comment on the possible guilt or otherwise of the alleged offenders. That is a task entrusted exclusively to the courts of law.
But at least merit is due in recognising the resilience of the Court of Magistrates, in the face of adversity, in proclaiming loud and clear that the 2006 law allowing private individuals and organisations to file a report for a magisterial inquiry to start is not a dead letter any more, but a legal remedy which is alive and kicking.
Tonio Borg is a former European Commissioner, and lecturer in public law at the University of Malta.
This is a Times of Malta print opinion piece