A deeply contentious and controversial bill proposing reforms to how magisterial inquiries can be requested and conducted has been making headlines over the past weeks.
With Bill 125 now being debated in Parliament, The Malta Independent on Sunday analyses what the bill says, what it means, and why the government has made these proposals.
What does a citizen have to do now?
What the bill says: It's too long to reproduce verbatim, but the bill introduces a brand new procedure through which a citizen can - eventually - gain the right to request a magisterial inquiry.
Under the new procedure, a citizen must file a police report and if the suspected crime carries a prison sentence of over three years and the subject matter of the offence still exists (both provisos that already exist today) then the citizen may also request a magisterial inquiry - but that's not automatic.
It's up to the police to investigate whether there are grounds to prosecute or not, and their determination will be handed over to the Attorney General who will then decide whether to prosecute or not. If there are no grounds for prosecution, the Attorney General can order the police to continue its investigation, or advise the citizen filing the report and the suspect that there will be no prosecution.
There is only a specific scenario when a citizen can directly request a magisterial inquiry. The first requisite is that six months has elapsed since the original police report was filed. Then, the following pre-requisites must also be valid: "a prosecution shall not have been initiated against the suspected person; or a decision not to prosecute the suspected person shall not have been taken; or an inquest upon the request of a private party on a suspected person under this sub-article shall not have been opened."
Furthermore, an inquiry can only be granted on the basis of proof which is admissible as evidence before a criminal court.
What it means: There's a lot to chew on here, and a lot of potential implications. Prior to this reform, a citizen could file a request for a magisterial inquiry directly with a magistrate, who then decides accordingly whether there is enough evidence for such an inquiry to be launched. That can no longer happen.
The control of the process is now outside of both the citizen's hands and the court's hands as well. The government may say that it is not removing a citizen's right - but it certainly is making it far harder for a citizen to exercise that right.
This reform offers only a particular scenario where a citizen can actually seek an inquiry, and while citizens have a remedy if the police or Attorney General abusively decide that someone should not be prosecuted through challenge proceedings - much like Repubblika filed against the Police Commissioner with regards to Pilatus Bank - that's an added court procedure that one would have to go through.
Why it's there: This is the true crux of the reform - even if the document itself is 18 pages long. Prime Minister Robert Abela grew severely vexed at Jason Azzopardi in particular as the former PN MP filed several requests for magisterial inquiries against people in the Abela administration. The response to curtail how and when a citizen can request a magisterial inquiry is how Abela dealt with it.
New timeframes
What the bill says: "The inquest shall be concluded within six months from when it is opened. In any case where the inquest is not concluded within two years from when it was opened the Magistrate shall, notwithstanding any other provision of this Code or of any other law, conclude the report of the inquest upon the acts available [..]."
What it means: Previously a magisterial inquiry had no capping on how long it could last. There was a limit of 60 days imposed, but there was no limit to how long an inquiry could be extended. This new law will increase the initial limit from 60 days to six months, but introduce a cap on the extension of two years. A further extension can be granted, but it is purely in the discretion of the Attorney General.
This introduces a degree of certainty to how long an inquiry may take, but it also introduces a degree of uncertainty as to whether more complex cases which, naturally, take time, can ever be concluded, as that would then be at the behest of the whims of the Attorney General.
Why it's there: How long an inquiry takes has long been under the microscope together with the length of other court proceedings. Prime Minister Robert Abela actively criticised the magistrate investigating the death of Jean Paul Sofia for how long she took to conclude her investigations, while he lambasted the magistrate investigating the Vitals hospitals deal for taking almost five years to conclude her inquiry, and then concluding it on the eve of the MEP elections. So with that in mind, it's no surprise that such a provision is included.
Balance of probabilities
What the bill says: "The Criminal Court shall decide to order the opening of an inquest in accordance with paragraph (a) of this sub-article (4A), only if it results to it on a balance of probabilities on the basis of proof admissible as evidence before a court of criminal jurisdiction, that the alleged offences could have been committed by the suspected person."
What it means: There are different standards of proof for different cases in the legal sphere. One such standard is "prima facie" - which essentially means that with the evidence 'at first glance', there is good reason to believe that something has happened. When it comes to inquiries requested by the Police and the Attorney General's office, this standard of proof is enough.
Prior to this reform, that's the standard of proof that a citizen's request for an inquiry needed to satisfy as well.
However, this reform introduces a higher level of proof for citizens who request an inquiry to have to reach: the "balance of probabilities." This essentially means that in order for a citizen's request for a magisterial inquiry to be ultimately accepted, the citizen needs to prove that it's more likely than not that the crime being alleged took place.
Why it's there: Prime Minister Robert Abela has time and time again commented that the standard of proof for an inquiry to be opened is far too low. "God forbid that one doesn't need more than prima facie evidence because we've seen so many innocent people crucified in courts," Abela told journalists when asked about the matter. This part of the reform will place a greater requirement for evidence - but it will also make it harder for a citizen's request to be accepted, because there's only so much evidence that the average person can actually get.
Penalties for abuse
What the bill says: "[...] If the Magistrate considers that a suspected person was placed under examination unjustly on the basis of a report, information or complaint presented according to this sub-article by reason of it having been either unfounded, frivolous, vexatious or abusive of the judicial process the Magistrate may decide to condemn the person who filed the report, information or complaint to pay the costs of the inquest [...]."
What it means: Essentially it means that if the magistrate hearing a citizen's inquiry determines that the claims against the accused were "unfounded, frivolous, vexatious or abusive of the judicial process" then that citizen can be condemned to pay the costs of the inquiry.
The determination is open to the interpretation of the magistrate, although these points do hold a certain legal meaning and such a decision is subject to appeal - but what has been particularly highlighted is that the potential financial penalty is uncapped: the cost of a magisterial inquiry can be thousands but it can very quickly become millions. For instance, the inquiry into the Vitals case cost over €10 million while the Egrant inquiry cost over €1.2 million. This deterrent could serve as a chilling effect for anyone who wants to request an inquiry, even if their evidence and request is genuine.
Why it's there: Again, the Prime Minister had hinted at something that would introduce a punishment for cases where the justice system is "abused" - and this would be it. But perhaps the deterrent that this introduces and the chilling effect it may have even on genuine cases is also a part of the equation into including this into the bill.
Limitations on court experts
What the bill says: "The decree appointing the expert shall explain the assignment given to the expert and shall also make it clear that the role of the expert is limited to the determination of matters of fact relevant to the constitutive elements of the offence only, without expressing an opinion with regard to the commission or otherwise of the offence."
"Experts shall be paid such fees which are as much as possible normally applicable to payments made to professionals for comparable work in Malta."
"In cases where before an expert is engaged or at any stage during the execution of his assignment there is an expectation that the payment to be made to the expert is going to exceed fifty thousand euro (€50,000), or such higher amount as the Minister responsible for justice may from time to time, by order in the Gazette establish, the Magistrate shall obtain the prior authorisation of the Chief Justice, who before granting or refusing such authorisation shall consult the Attorney General."
What it means: These clauses all cater to the appointment of court experts - a topic which, again, was contentious during the Vitals inquiry after it transpired that the inquiring magistrate relied on the analysis and opinions of foreign experts, who ran up a bill of millions of euros.
Once this reform is introduced, that can't happen anymore: an expert will be limited to only figuring out the facts and will be precluded from actually expressing their own expert opinion on the case before them.
Any payment to experts will also have to be comparable to rates paid to for similar expertise in Malta - and should a payment exceed €50,000, the Chief Justice needs to approve it - but not before consulting with the Attorney General.
Why it's there: This is almost certainly a response to the furore created by the foreign experts engaged by Magistrate Gabriella Vella during the Vitals inquiry. Their qualifications, credibility, cost, and conclusions have been roundly criticised by both the government and the respective defences in the hospitals case.
The limitations put on an expert not being able to provide an opinion is an odd one: courts allow expert opinion when a case comes up for trial, so it's a question mark as to why the government wants to stop the use of expert opinions during an investigation.
The introduction of the Attorney General having the legal right to a say in payments to experts also raises eyebrows. While it doesn't stipulate that the Chief Justice has to comply with the Attorney General's opinion on the matter, it muddies the waters between court and state that little bit more.
Suspect's rights
What the bill says: "When a person who is the suspect or is otherwise the subject of an inquest is called as a witness at the inquest, he shall be informed before commencing to give evidence that he is a suspect or is the subject of the inquest and of the offence which it is considered that he may have committed and the reasons therefor. Such person shall be granted the right to be assisted by an advocate and shall have all the safeguards that result from the law applicable to criminal investigations including the right to access the materials of the case in terms of article 534AF."
"A person who is a suspect or a person who considers that he is the subject of an inquest may by means of an application to the Magistrate request to give his evidence in the inquest and indicate witnesses and other proof to the Magistrate, and if it results to the Magistrate that such a person is the suspect or the subject of the inquest, the Magistrate shall accede to the request and shall within a reasonable time before the date appointed for the giving of such evidence [...]"
What it means: With this reform, a person now has the right to know if they are a suspect in an inquiry. Beyond that, they will also be granted the right to a lawyer and to be given access to the facts of the inquiry. Furthermore, the suspect will also have the legal right to request to give their evidence and testimony to the inquiring magistrate, and the inquiring magistrate must accede to that request.
Why it's there: These reforms very clearly stem from how the Vitals magisterial inquiry was conducted. Throughout the court proceedings that have played out over the last nine months, several of the accused have said that they didn't even know that they were suspects, while others said that they hadn't even testified before the inquiring magistrate.
The most high profile of those is former Prime Minister Joseph Muscat. He claimed that he had only found out he was being investigated through media reports and has now filed constitutional proceedings because the inquiring magistrate did not hear his testimony, despite Muscat himself having requested to testify before her.
What else it proposes
The reform also makes several other proposals.
It gives the right to public authorities with an investigative function to have access to evidence and testimony collected during a magisterial inquiry. Today, that right existed for the Occupational Health and Safety Authority but not for other bodies with a similar degree of authority.
The bill formalises a government reform that will create a pool of magistrates formally dedicated solely to carrying out magisterial inquiries, rather than having to contend with both inquiries and day-to-day court work.
It also introduces new rights to victims and their heirs. They will now be able to be granted the procès-verbal of the case by the AG for free, and also have the legal right to be informed of the process of the inquiry every six months and also if a decision not to prosecute a suspect is taken.
The involvement of the Attorney General has also increased though - for instance, the bill states that "inquest proceedings in general shall be carried out under the supervision of the Attorney General" - something which may be interpreted as giving AG Victoria Buttigieg - whose own credentials for the role have come under fire - more power over inquiries.
Likewise is another part of the reform which states: "The Attorney General shall have the right to give indicative directions for the consideration of the Magistrate on those steps which he considers should be taken so as to enable the conclusion of the inquest without delay."
This is self-explanatory, and gives the Attorney General the legal right to suggest how a magistrate should proceed in their investigations in order for them to be concluded. The AG already has a legal right to have access to any documents within an inquiry, but this adds another power to the office. This being said though, at no point does the reform bind the inquiring magistrate to actually have to follow the Attorney General's suggestions - the magistrate will only be bound by the timeframes to conclude the inquiry.
There have also been provisos included to establish how this reform can be backdated. The regulations say that the new rules will apply not just after they are approved, but also to any request filed before 1 January this year where a decision hasn't been taken. That includes some of Jason Azzopardi's requests - which is what started this whole process off in the first place.
It also stipulates that all magisterial inquiries which have been ongoing for two years or longer must be drawn to a close within six months - which would effectively halt investigations into complex, and sometimes national importance-level cases.
The reform is being rushed through the Parliamentary process, with the Second Reading starting on Tuesday of last week. It is expected to be approved, despite widespread opposition from the Nationalist Party and several stakeholders and constituted bodies.