The Malta Independent 3 March 2024, Sunday
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Government’s attack on the judiciary’s impartiality

Kevin Aquilina Sunday, 29 January 2023, 09:34 Last update: about 2 years ago

Through Bill No. 39 of 13 January 2023 entitled the Criminal Code (Amendment No. 2) Act, 2023, government is launching its New Year’s parliamentary legislative schedule with a frontal attack on the independence of the judiciary.

The Objects and reasons of the Bill are ‘to provide a legal basis for the involvement of the Occupational Health and Safety Authority in inquests arising out of industrial accidents or incidents happening at a place of work in respect of which the Occupational Health and Safety Authority is entitled to carry out a separate investigation under the Occupational Health and Safety Authority Act, thereby making the expertise of the said Authority available to the inquiring Magistrate and avoid unnecessary duplication of work and cost’.

This bill, when enacted into law, will amend article 546 to the Criminal Code introducing serious inroads into the impartiality of the Inquiring Magistrate. With the bill’s enactment, when a Magistrate is investigating occupational health and safety at work cases of involuntary homicide or involuntary body harm, s/he has to notify the Occupational Health and Safety Authority of such inquest. In turn the Authority will be entitled to nominate ‘one or more of its officers to be present during the inquest and to ask questions to witnesses and experts during all sittings held during the inquest and to file a report which shall form part of the act of the inquest’.

First, the Bill does not limit the number of officers that the Occupational Safety and Health Authority (OHSA) can nominate. Nor does it regulate conflicts of interest, for one or more officers concerned might not be suitable – from a judicial point of view – to participate in the inquiry, more so if the inquest would be indirectly challenging his or her own performance. But the conflict of interest may also arise in relation to performance of duties by the Authority itself. What will happen in this case? Will the officer/s continue to participate in such inquest notwithstanding his/her or the Authority’s recognized conflict of interest? In the case of an Authority officer, will s/he be replaced or withdrawn from the inquest? In the Authority’s case, can the Inquiring Magistrate request the Authority’s total withdrawal from the inquest?

Second, the Authority is part and parcel of the Executive, not of the judicial branch. Why is its presence going to be obligatory in a judicial inquiry? What is the added value that the judicial inquiry will gain from such presence when current law already allows an Inquiring Magistrate, if and when appropriate, to seek expert advice from the OHSA? Is this not an executive imposition on an Inquiring Magistrate’s independence?

Third, the Authority’s officers have the ‘right to question witnesses and experts during all sittings’. Is this right not already given to an Inquiring Magistrate who – by law – is independent and impartial? The Authority’s officers owe their allegiance to the Authority and to the competent minister, not to the Inquiring Magistrate. Were this to be the case, OHSA officers would have been appointed on the inquest by the Inquiring Magistrate not by OHSA.

Fourth, if Authority officers will attend all sittings and be privy to all secret and confidential evidence adduced before an Inquiring Magistrate, will they be bound by an oath of confidentiality not to divulge any information related to that inquest before the actual inquest is publicized in terms of law, if ever this were to be the case?

Fifth, the Authority has the right to file an ex parte report in the acts of the inquest. Whilst all the other experts are appointed by the Inquiring Magistrate and follow orders and instructions imparted from the judicial branch, the Authority officers are not appointed by the Inquiring Magistrate but by the executive branch. In this sense, they do not enjoy the independence and impartiality that court-appointed experts do. The Inquiring Magistrate has no control on what goes into the ex parte report that is eventually filed in court proceedings. What if the report is factual incorrect? Can it be corrected?

Sixth, the Inquiring Magistrate has no control on the number of Authority officers that are appointed to the inquest, nor as to their attendance that can be erratic in the case of one and constant in the case of another officer, as Authority officers – contrary to Inquiring Magistrate-appointed experts – take their orders from the executive, not the judiciary. There is no obligation placed upon the Authority not to remove or substitute its own appointed officers during the iter of the magisterial inquiry. Hence, the reliability of Authority officers and their commitment to the inquest may be put in doubt.

Seventh, what if the report filed by Authority officers (and, it need not be one report drawn up by all Authority officers together but as many reports as there are Authority officers involved in an inquest) runs counter to a report penned by an expert appointed by the Inquiring Magistrate? Does the latter have to extend his/her inquiry to determine which report to follow? Or perhaps adopt certain parts from that of the judicially appointed expert/s and other parts from that of one or more Authority officers?

Eighth, whilst an Inquiring Magistrate appoints as an expert a person who is qualified in the subject-matter of the reference, there is no requirement in government’s proposal that the Authority’s officer or officers be experts in the matter at hand. For the Bill refers to the term ‘officer’ without qualifying his or her expertise. In this way, an administrative officer, an executive officer or a clerical officer performing secretarial, managerial or administrative duties – but possessing no knowledge of, or expertise in, occupational health and safety – may be so appointed.

The question that has to be asked here is not what benefits will accrue to OHSA from this Bill but what benefit will a magisterial inquiry gain from having such officer/s on board during a magisterial inquest? After all, as the law stands today, an Inquiring Magistrate may always appoint – if it is beneficial to the inquiry – a competent officer of the Authority to assist in the inquiry but not to take over control of and run the inquest on behalf of the Inquiring Magistrate.

It has to be remembered that the inquest’s report may recommend the taking of criminal proceedings against OHSA officers for being in breach of their duties (an embarrassing situation to have with OHSA officer/s being privy to the evidence compiled by the Inquiring Magistrate that is detrimental to OHSA and/or its officer/s, including one or more participating at the inquest). Can OHSA, at that stage, be prewarned of the Magistrate’s likely conclusions and take the necessary steps to destroy any further evidence that the Police may compile on instructions of the Inquiring Magistrate? Will this not create hurdles to the proper administration of justice?

Moreover, the inquest report may be used, as is usually the case, in proceedings before the courts of criminal jurisdiction both when the Court of Magistrates is compiling evidence (‘kumpilazzjoni’) where the inquest report is filed in the acts of the magisterial preliminary investigation (‘kumpilazzjoni’) as well as when that same court, or the Criminal Court try an accused person. If it transpires that a partial and executive dependent Authority officer participated in that inquest, will not this raise serious human rights issues as to the independence and impartiality of the Inquiring Magistrate, not because of the latter’s lack of independence and impartiality, but because of the Authority’s officer/s total lack of independence and impartiality?

Should a court of constitutional jurisdiction or the European Court of Human Rights rule that such inquest report is invalid at law simply because of a Authority officer/s’s participation in the inquest, will this not mean that (a) the inquest report cannot be brought into evidence by the Prosecution; (b) that all the time and effort devoted by an inquiring magistrate would have turned out to be unproductive and wasteful; and (c) all the money that has been incurred to compile expert reports and adduce other evidence would have gone down the drain?

In addition, if OHSA is quite eager to invite itself at the table of the inquest, will not other public corporations who might have an interest in magisterial inquiries in relation to other subject-matters request such preferential treatment? As the Italians say, l’appetito vien mangando! And if all the floodgates for non-judicial participation in a judicial inquiry are opened, why should not insurances – who, have to face the brunt of disbursing several thousands of euro following the conclusion of a magisterial inquiry – not also be allowed to be represented at the inquest as well to ensure that everything is done above board?

Trough government’s proposed amendment, an Inquiring Magistrate will no longer be accountable also to the Constitution, the laws and his/her conscience. Now s/he will become accountable to the OHSA and, who knows, in the future, to other authorities and organised interest that are not independent and impartial. The integrity of the office of Inquiring Magistrate is at stake.

The Objects and Reasons state that the amendment will make OHSA expertise available to the Inquiring Magistrate but does not regulate the level of competence of OHSA officers. What if an Inquiring Magistrate, on the basis of past unsatisfactory performance, is unsatisfied by the Authority officer/s concerned? Does the magistrate have to lump it? Can s/he request the Authority Chair to substitute the under-performing or incompetent officer? What if the court appointed expert is more qualified than the Authority officer?

The Objects and Reasons also refer to ‘unnecessary duplication of work and cost’ attributable to the carrying out of two concurrent, yet independent, inquiries, one by the judiciary, another by OHSA. If there is unnecessary duplication as government is stating why is the OHSA inquiry needed once there would be a fully-fledged ongoing magisterial inquiry?

If the problem is a backlog of magisterial inquiries, the proper solution is to appoint five magistrates whose sole duties would be only related to magisterial inquiries. Now is the time to act upon it and not to propose laws that continue to infringe the independence of the judiciary and introduce executive control over the judicial process. To solve the backlog of magisterial inquiries related to occupational health and safety without solving the entire backlog of magisterial inquiries does not solve the problem but only serves to put more pressure on government to fast-track other types of unprivileged magisterial inquiries that would end up placed in second class even if these latter inquiries might deal with crimes more serious than OHSA related crimes. This would end up being a disproportional measure.

 

Kevin Aquilina is Professor of Law, Faculty of Laws, University of Malta.

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