In rejecting a request for a magisterial inquiry into the hospitals deal, a court decree overturned a magistrate’s previous decision and dismissed information derived from journalists. Victor Paul Borg examines the case

A complaint filed by NGO Repubblika against Judge Giovanni Grixti, submitted to the Commission for the Administration of Justice, came hot on the heels of its second bid for a magisterial inquiry into alleged crimes by three ministers in the hospitals deal.

Mr Justice Grixti’s decree overturned a previous magistrate’s decision to launch an investigation. 

Repubblika’s extraordinary move – of promptly putting in a fresh 109-page court application for an inquiry – is the latest salvo in a five-month saga in which court submissions have already swollen to hundreds of pages. 

The NGO’s legal temerity and strategic manoeuvrings are probing the system, testing the law, and highlighting the unworkability of Malta’s judicial investigations.

The law permitting suspects to oppose being investigated has been described as “beyond bizarre” by Chief Justice Emeritus Vincent Degaetano in a public lecture delivered last December, while Pieter Omtzigt of the Council of Europe’s Parliamentary Assembly wrote in a report earlier this year that these investigations by magistrates “tend towards confusion, inefficiency and ineffectiveness”.

What is Repubblika’s legal move about? 

In a 153-page application filed on May 13, Repubblika stitched together a detailed narrative that points to purported criminal offences committed by three ministers – Edward Scicluna, Konrad Mizzi and Chris Cardona – and the owner of medical-supplies company Technoline, Ivan Vassallo, in relation to the deal signed by the government with the now-defunct Vitals Global Healthcare to run three State hospitals.

The details were mostly gleaned from numerous articles published by a wide swathe of Malta’s media outlets.  

What does the law on inquiries state? 

Legal provisions inserted in 2006 into the law on “magisterial inquiries” (technically called in genere inquiries) empowered any person or entity to submit a written report on an alleged crime to the duty magistrate and request a magisterial investigation.

The application has to fulfil three pre-requisites: the alleged crime has to be punishable by at least three years imprisonment, the evidence has to be in existence or at least recoverable, and the suspect has to be named. 

In a bid to thwart abusive investigations, the law has a double-catch: the suspect is given a chance to make submissions on the holding of an inquiry and any of the parties can then additionally appeal from the magistrate’s decision to launch such an inquiry.  

The report has to provide detail and evidence of crimes committed

In the case at hand, the suspects opposed an inquiry and then, after Magistrate Claire Stafrace Zammit ordered an inquiry on July 18, the three ministers appealed against her decision two days later. Mr Justice Grixti heard the appeal and overturned the magistrate’s decision on October 3. 

Mr Justice Grixti’s decree 

Even before he delivered the decree, the judge was being criticised for taking many weeks to resolve an appeal which the law specifies has to be decided with “urgency”. 

In the decree, Mr Justice Grixti’s line of reasoning is diametrically opposed to that of Magistrate Stafrace Zammit’s.

Magistrate Stafrace Zammit took the line that the role of those making the report would be to provide information on a possible crime, identify the proof that can be preserved as well as the suspect, and then it would be the job of the inquiring magistrate to dig out evidence, if any, that could be used in an eventual prosecution.

Mr Justice Grixti, however, maintained that the report has to provide detail and evidence of crimes committed, that in this case the applicants had no direct knowledge or experience of the alleged crimes, and that their information was mostly gleaned from the articles of journalists, bloggers and the commentariat.  

The judge points out that this obligation arises from the first clause in the law – Article 546(1). Yet that clause defines the functions and parameters of magisterial inquiries, not the requirements placed on someone who makes the report (denunzja in Maltese).

Senior justice sources who spoke to Times of Malta were dismissive of Mr Justice Grixti’s interpretation, particularly since his decree appears to stymie all judicial investigations other than those instigated by the police or Attorney General as empowered in other provisions of the law. 

This point was underscored by Tonio Borg, the former Minister for Justice who piloted the law in 2006, in an article in Times of Malta earlier this month.

He wrote that the idea had been that if someone could provide “prima facie proof that something was amiss, the court would start a full inquiry to gather the evidence which might lead to criminal prosecution”.

Referring to Mr Justice Grixti’s two decrees this year, both revoking a decision by a magistrate to launch an investigation, Dr Borg lamented that by requiring an “absurdly high threshold [of evidence] for such inquiries to start” – a threshold normally reserved for the criminal trial itself – the court was rendering the law impotent.  

What’s this about a denigration of journalism? 

Mr Justice Grixti questions the validity of information gleaned from journalistic works, describing Repubblika’s submissions as mostly consisting of a “collection of conjectures and opinions of journalists and bloggers”. 

Some of the articles cited in the application are indeed opinions and conjectural pieces, but others are thorough and transparent investigative pieces. 

Mr Justice Grixti additionally points out that many of the articles referenced quote anonymous sources, which makes the information inadmissible in a criminal court.

This can be seen as flawed, incomplete reasoning, because the articles are merely invoked in Repubblika’s application to weave the tapestry of information. It would then be the role of the inquiry to produce admissible evidence, if it exists. 

Moreover, anonymous sources do not detract from the value of journalistic delivery: in investigative journalism, the veracity is self-evident in the article’s construction and factual bearing, even if it has to rely in part on anonymous sources. 

How could Repubblika file the application afresh? 

This move is technically possible because the law on magisterial inquiries has no provision known as res judicata – it is not the determination of a case (or, technically, of a cause) between two litigants.

It is a right which the law accords to private citizens to assist in the administration of justice by bringing to the attention of judicial authorities the possibility of a criminal offence having taken place. The logical expectation is that the judicial authority would then take the mantle and investigate.

Yet, Repubblika’s latest application is not just a rehash of the previous one: it reiterates the alleged crimes succinctly, it adds details of suspicious happenings that have emerged since the initial report last May, and it bolsters the legal rationale in response to Mr Justice Grixti’s argumentation.