The Criminal Court has once again quashed a decision of a Magistrates’ Court allowing civil society to request the triggering off of a magisterial inquiry into alleged wrongdoings of the powers-that-be.

When in 2006 I had piloted the Bill with the valuable help of then junior Minister Carmelo Mifsud Bonnici, to allow, for the first time, private individuals and organisations to request the holding of an inquiry, the idea was that if the NGO 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.

An inquiry is not a trial. By requiring an absurdly high threshold for such inquiries to start, the court is stealthily eliminating this right of initiative of private citizens or reducing it to insignificance.

In a pre-trial stage, the level of proof is not that of a criminal trial.

Take, for instance, the police powers of arrest. To arrest a person, the police need only reasonable suspicion, not full trial proof.

Evidence usually not admitted in a trial, such as hearsay evidence, is allowed for the police to justify the existence of reasonable suspicion to effect an arrest.

On April 29, the Magistrates’ Court had valiantly affirmed, in spite of this Criminal Court judgment, its exclusive right to order the commencement of an inquiry when a private person or organisation requests it, without the need of stringent trial conditions.

Only after the Attorney General authorises prosecution, and only at the end of the trial, will the court decide whether a person is guilty or innocent. To require full proof in order to start an inquiry defeats its own purpose.

Legal niceties should never be considered when it is the Prime Minister who requests an inquiry

The Criminal Court for the second time gave a wrong interpretation of the law quashing the correct decision of the Court of Magistrates. The law states that whenever a report is made to the inquiring duty magistrate on any crime liable to more than three years’ imprisonment, then if the subject matter of the offence still exists, the state thereof, with each and every particular, shall be described and the instrument shall be indicated.

The law adds that for the purposes of any such investigation, an inquest on the spot shall be held.

It is evident, particularly from the last sentence, that these details and tasks are the responsibility of the inquiring magistrate once he decides to hold an inquiry, not of the complainant. Proof of this is the fact that an inquest on the spot “shall be held”. A private individual cannot order such an inquest; only the court may!

We are now back to square one, for once again, the Criminal Court refused to take into consideration newspaper reports, investigative journalistic work and other indirect evidence.

In Malta that is not even enough to start a pre-trial investigation.

Richard Nixon would have been saved the embarrassment of impeachment proceedings in the Watergate affair, and eventual resignation from high office, if only the Maltese Criminal Court had been in charge of that investigation in 1974!

The only inquiry which was accepted and concluded since the new law came into force was the Egrant investigation requested by the Prime Minister.

I am still struggling to find under which legal provision in the Criminal Code, the Prime Minister requested an inquiry about himself. I found none.

But legal niceties should never be considered when it is the Prime Minister who requests an inquiry.

Who are we ordinary mortals to stand in his way? Is it a mere coincidence that all the inquires requested by private organisations have been stalled, are still pending, or indeed quashed before they even start, while the one requested by the Prime Minister is conveniently the only one to have been concluded? Who knows why?

What a far cry is this sorry state of affairs in the Maltese courts from the audacious judgments being delivered by the UK Supreme Court during the current Brexit crisis.

On September 24, the Supreme Court unanimously annulled a prorogation of Parliament, triggered by the UK Prime Minister, on the grounds of improper purpose.

In intruding on this hallowed ground of executive prerogative, the court, presided over by Lady Hale, stated that: “The fact that a legal dispute concerns the conduct of politicians or arises from a matter of political controversy, has never been a sufficient reason for the courts to refuse to consider it.”

We do not need judgments granting practical immunity to members of the higher echelons of government from being investigated.

Our system needs more accountability to the law courts, not less.

Tonio Borg is a former European Commissioner and lecturer in public law at the University of Malta.