The magisterial inquiry reform the government has submitted to Parliament is the "fatal torpedoing of the rule of law," professor of law Kevin Aquilina writes today.
"This fatal torpedoing of the rule of law measure queuing to be legislated upon is, to say the least, abysmal and oppressive once Malta is already sinking rock bottom deep in its non-observance of the rule of law," Professor Aquilina writes.
In an article published in The Malta Independent on Sunday today, entitled "Bill No 125 - The latest nail in the rule of law coffin", Aquilina says that the "undeclared purpose" of the legislation "is to minimise governmental accountability and embed therein the culture of impunity into Maltese Law".
"It is not dictated by the common good of society or by the public interest but by the selfish interest of a few who have turned the state of Malta into their fiefdom, the Maltese into their vassals, the government coffers into their own private wealth, and public property into their own possession," Aquilina writes.
"What the bill will soon successfully achieve is to stonewall or block outright all possible remedial avenues for a public-spirited citizen to request an independent magisterial inquiry to preserve evidence of wrongdoing and criminal acts, and to uphold criminal justice, for that is the exact main juridical nature of magisterial inquiries," Aquilina writes.
"This fascist, illiberal and retrograde government initiative propels Malta backwards not forward in so far as the enhancement of the rule of law is concerned. There is nothing progressive, emulative or laudable in it," he wrote.
On 29 January, the First Reading of the bill in question was approved by Parliament, with the Opposition voting against, a rare occurrence given that, at the time, the details of the government's intentions were still under wraps. But the Nationalist Party, along with many others, had immediately expressed its reservations on the government's intentions, saying it would vote against at all stages. "Even though we do not have a copy of the bill, we are voting against it," Opposition leader Bernard Grech said in Parliament.
A day later, Prime Minister Robert Abela and Justice Minister Jonathan Attard gave a press conference which, for the first time, laid down the government's intentions. Abela said the reform was required because the system was being "abused", and that innocent people were being destroyed by lengthy proceedings.
In the presentation of the bill, Abela said that in the past few months and weeks, some people "clearly abused" the legal framework and its many loopholes, and used the justice tool as a "means of persecution on people, ordinary citizens, legitimate businesses".
"We want to ensure that there is no repetition of such episodes of people who are clearly innocent who must pass through this. If, however, someone has indeed committed wrongdoing, then they must face judicial processes," Abela said.
Abela had announced the government's intentions to change the system over the Christmas period after a string of requests were made for magisterial inquiries to be initiated against government ministers and other officials.
With the proposed changes, citizens seeking to open a magisterial inquiry need to first approach the police with their request. If, after six months, the applicant is not happy with the police's action or inaction on the complaint filed, they can take the matter before a judge (not a magistrate) who would then decide whether an inquiry should be launched. Applicants must also submit evidence that is admissible in court.
This, and other changes, have been described as a way for the government to make it much harder for magisterial inquiries to be initiated. Opponents of the bill are seeing it as a way for the government to protect its own. It was, after all, a magisterial inquiry into the hospitals' deal which led to the arraignment of former Prime Minister Joseph Muscat and others, while another inquiry has also led to the arraignment, only last Wednesday, of former Minister Konrad Mizzi and former OPM chief of staff Keith Schembri, both of whom are also facing charges related to the hospitals' inquiry.
The government is significantly raising the level of proof required to open a magisterial inquiry, the Nationalist Party said in its initial reaction. It added that the government now wants the police to have the responsibility to decide whether a magisterial inquiry should start, when the police themselves have been accused of not doing their job.
"It is scandalous that the government is also proposing that it should be the citizen who investigates, collects, and presents evidence before the authorities - when this is precisely the primary role and purpose of the magistrate in a magisterial inquiry," the PN said. "Robert Abela is terrified of the truth and justice because he knows that, like his predecessors, he leads a government riddled with corruption, with one minister after another being caught in serious cases of corruption, abuse of power and misconduct," the PN said.
NGO Repubblika condemned Abela's attempt to discredit magisterial inquiries.
"Malta's recent history shows that journalists have uncovered evidence of corruption, when the country's responsible institutions refused to investigate it for years," it said.
"Malta's resources to fight corruption are already weak as they are," it commented. "We therefore reiterate our appeal for a white paper and an effective consultation on the reforms that the government wants to make."
The call for a white paper is also endorsed by the aditus Foundation, the Daphne Caruana Galizia Foundation, Għaqda Studenti Tal-Liġi, Occupy Justice, PEN, Żgħażagħ Ħaddiema Nsara, Vuci Kollettiva and Moviment Graffitti.
The eight organisations appealed to government to publish a white paper first, so that the Maltese public can better understand what is being proposed, discuss it, and even make proposals itself.
Repubblika has also gone as far as to ask the President of the Republic not to sign the reform being proposed by the government into law.
Moviment Graffitti has also lashed out at plans to revise the current system of magisterial inquiries, saying Robert Abela has "hammered another nail into democracy's coffin".
"The courts are one of the last independent institutions left. By making access to the courts dependent on the police, the bill is a threat to liberty and accountability," the NGO said in a statement.
But the government has waived aside all criticism and proceeded, with haste, in drafting the legislation which it has presented in Parliament.
In his article today, Aquilina writes that "what government is proposing to the House of Representatives to approve through the bill is highly nefarious, subversive of the cardinal virtue of justice, and - undoubtedly - constitutes another devastating blow to the rule of law".
The government "has decided to administer the latest and hopefully mortal coup de grâce to the rule of law in Malta auguring that this time round it will be definitively and forcefully smashed through the bill that constitutes a disgrace to any government that has a shred of respect for itself, the democratic credentials of Malta, good governance, political accountability and the rule of law".
See Prof. Aquilina's article here