Opinion: Change the law on inquiries

Isabelle Bonnici’s cause in seeking truth and justice following her son’s premature and tragic death last December is one of a kind. She has been relentlessly going persuade the government to launch a public inquiry to delve into what caused this particular tragedy to take place.

She has made her presence felt in front of Castille. She lobbied for days on end in front of parliament, handing out leaflets to all MPs entering the House in order to make her cause known to all and sundry. She even managed to persuade the opposition to table a motion in the House that brought about a discussion by both sides as to whether an inquiry was necessary or not in the circumstances, depending on one’s point of view.

Seeing that she was not going to obtain any satisfaction from parliament, she even went further to launch an online petition that managed to garner thousands of signatures in support.

To date, no inquiry seems to have been launched and all she can hope for is for the inquiring magistrate’s report to be concluded and to establish if anyone is to shoulder any criminal responsibility and why. However, that is only a partial satisfaction, as it will only go on to bring to justice whoever was criminally culpable and answer therefor, if at all.

That, by itself, will not reveal the whole truth of what went on behind the scenes to bring down a whole building like a pack of cards in a jiffy. That could only come about if and when an inquiry is launched to determine and identify if any ministry, department or other statutory body was somehow also responsible for the shortcomings attributable to individuals as established by the magisterial inquiry.

Isabelle’s case has parallels beyond our shores.

Marina Litvinenko was the widow of Russian dissident Alexander Litvinenko, who died after being poisoned in London in 2006. She struggled to fund her battle against the British government’s decision to await the outcome of a normal inquest before deciding whether there should be a wider-ranging inquiry. She wanted to get to “the truth” and made a courageous decision to pursue her judicial review claim against the home secretary’s decision not to hold a public inquiry and to continue her fight to uncover the truth about her husband’s death, despite mounting adversity.

She appealed to the British public for money to finance her case.

She sought a judicial review of the refusal by the secretary of state for the home department on the basis that the government’s proposition that a statutory inquiry would be incapable of achieving any useful purpose was a bad one.

‘High Court overrules May on Litvinenko inquiry.’ So read the headline in the Financial Times’s report of the Divisional Court’s decision in R. (Litvinenko) v. SOSHD (2014) EWHC 194 (Admin).

If we do not fully investigate our past mistakes, we are doomed to repeat them- Mark Said

Media reports of court decisions are not especially known for their accuracy. However, on this occasion, the use of the term ‘overrule’ to describe the court’s approach to judicially reviewing the minister’s decision not to initiate a public inquiry was apt: the court approached the case as though it were hearing an appeal from the minister’s decision rather than exercising supervisory jurisdiction.

A public inquiry was indeed launched and went on to reveal a number of embarrassing truths.

That legal position was reaffirmed by the high court in 2019 with respect to the government’s refusal to hold a public inquiry into allegations that the security services were complicit in the torture and abduction of terror suspects after 9/11.

This is why and where I envisage a need for a legislative amendment in one particular piece of legislation that would ensure that in particular cases such as that of Jean Paul Sofia’s tragic, but preventable, death, a judicial remedy is afforded to whoever has an interest and feels that the whole truth is being left undisclosed on the pretext that, once a magisterial inquiry is underway, any parallel public inquiry would be useless and would not establish anything more than a magisterial inquiry can establish.

We have the Administrative Justice Act (Chapter 490), which sets up an administrative tribunal precisely for the purpose of reviewing administrative acts, including the public administration’s decision or refusal to meet any demand of a member of the public.

The refusal by the government to hold a public inquiry into Jean Paul’s death, as consistently requested by his grieving mother, is undoubtedly an administrative act with no judicial remedy possible in so far as the Inquiries Act is not listed in the schedule to that, thereby depriving the administrative tribunal of jurisdiction to review the government’s administrative behaviour in refusing to accede to the multiple requests to launch a public inquiry.

Including the Inquiries Act in that schedule would go a long way in enabling the administrative tribunal to review the principle of good administrative behaviour, not only in Jean Paul’s tragic case but, more importantly, in future similar cases worthy of an inquiry with terms of reference extending beyond the remit of a magisterial inquiry.

Doubt comes in through the window when inquiry is denied at the door. Doubt is the incentive to truth and inquiry leads the way.

The powerful must be held to account so that victims can move on with their lives but,  just as importantly, if we do not fully investigate our past mistakes, we are doomed to repeat them. 

Mark Said is a lawyer .