From the way Prime Minister Robert Abela is acting, and the decisions he is taking, "he is more dangerous than Joseph Muscat", the Nationalist Party's Shadow Minister for Justice, Karol Aquilina, said.

"Despite knowing magisterial inquiries were ongoing, Muscat never suggested the changes Prime Minister Abela is suggesting," Aquilina said in an interview with The Malta Independent on Sunday.

The government has tabled a highly controversial reform concerning magisterial inquiries which critics have labelled as being severely damaging to the rule of law, and a move that will restrict citizens' rights regarding such inquiries. Among those who are critical of the bill are the Nationalist Party, the Chamber of Advocates, the Chamber of Commerce, Malta Employers, ADPD, Momentum, The Malta Progressive Party, and others including civil society groups. A protest has also been held.

The Nationalist Party has strongly opposed the bill, arguing among other things that it removes the right for citizens to be able to directly request the launch of a magisterial inquiry.

Aquilina said that Abela is focused on "defending himself and his ministers even if he knows they are doing wrong and decided to do so at all costs, so much so that he decided to start dismantling, piece by piece, our country's laws. First he captured the police commissioner, then the Attorney General and now, because the courts are doing their job, he wants to dismantle the courts, and he will start by removing the right for citizens to go to court to request an inquiry. This indicates that there is something fundamentally wrong in the way he reasons".

Aquilina said that if one starts removing people's rights then it creates more victims. "The less we throw light on the darkness, the more abuse there will be. We need more information, more investigations, more decisions, more people to speak up, rather than hide. The message Abela is sending is the opposite, to hide, to cover up, to avoid someone asking and discovering."

Asked if he sees any will from the government's side to amend the bill at committee stage from the Parliamentary debate so far, he said he does not. "I followed all the speeches that were made in Parliament. To be fair the Justice Minister has not spoken yet in Parliament, he will make the winding up speech at the end." Aquilina said that one speech after another showed that the government wants to pass this law quickly, "with a narrative that it will improve the system and give rights to victims, but it absolutely does not. If the government had the intention to improve things for the better it would have approached us as an Opposition, we would have sat down around a table as we have done before, said what difficulties we had and tried to reach a compromise".

He said that when former PN Minister Tonio Borg had presented a bill regarding this law in 2006, "the government at the time had declared if anyone had suggestions to come forward. The Labour Party, among them at the time Gavin Gulia and Anglu Farrugia, came up with proposals and suggestions as to how the law should be changed so that there would be agreement between the two sides of Parliament, and the amendments passed with agreement from both sides".

There was compromise with the Opposition to have a law on which there was agreement since 2006, he said. "Today the government withdrew from the agreement that had been reached in 2006, and wants to pass these changes at all costs with the majority it has in Parliament. If the government wants to discuss certain details of the law we have no problem doing so, but we will not budge on the principle that every citizen should have the right to choose either to go to the police commissioner if they have faith in him, or go directly to a duty magistrate to launch an inquiry if they have faith in magistrates. That principle should remain."

Speedy process

Commenting on the pace with which the bill is moving forward, he said that things don't normally move so quickly. "We have a large number of laws that have been waiting in Parliament for months with nothing happening, gathering dust."

"It is on very rare occasions that the government goes full-speed ahead with something. Normally it would be on something both sides of Parliament agree on, and not something that is absolutely controversial. For instance we recently had a bill where we agreed the law needed to be amended, regarding extradition law. Through agreement from both sides of Parliament we passed it in record time; a single sitting. But there was agreement, not controversy, and there was the need for it to be done quickly for the benefit of the country to have a better system of justice."

In the present case, he said, "it is the opposite" and the government does not have an electoral mandate for this bill.

He said that the government is doing this in a "diabolical context". A few weeks ago there were a number of requests for magisterial inquiries, some of which are pending before the courts, others on which a decision was taken that they should not start and there is an appeal, Aquilina said. "That the government is going to change a law simply because Jason Azzopardi presented a number of court applications requesting the launch of magisterial inquiries is absolutely anti-democratic and is an abuse of the parliamentary system."

He said laws should be passed because the country needs them, not because they want to stop one person from requesting inquiries, he said. "This is not a serious way in which Parliament should pass laws."

Too much power to AG

Asked whether the bill gives the Attorney General too much powers, he said it does.

"For years magistrates always had a dual role, to listen and decide criminal and civil cases, but they also had an investigative role, where when there are certain circumstances as mentioned in the law, they must start magisterial inquiries. That was always a role magistrates had. Now the government suddenly drafts a bill and says that first you need to go to the police before going to a magistrate, and secondly after going to the police and six months pass you need to go to the criminal court to open an inquiry, and not a magistrate to launch an inquiry." The bill, he said, also raises the level of proof needed to launch an inquiry, to a balance of probabilities "which is between possible and probable". As it is today, he said, the evidence needs to be collected by the magistrate which has the powers to investigate, collect evidence and preserve it.

"The bill also includes a clause which says that all inquiries are carried out under the direction of the Attorney General. This is interference in the work of the country's magistrates. We have faith in all magistrates, we don't want the Attorney General to be above magistrates. If the law as it stands today wanted to envision that, it would have said it."

"This idea that the government wants to place someone it wants, which is the Attorney General, above the magistrates who conduct inquiries is completely unacceptable, and we should leave magistrates to do their job as they are meant to, as they are doing today."

Constitutional issues

Aquilina believes there is a constitutional issue with the bill. "When you speak about the independence and autonomy of the judiciary, primarily you are referring to their functions. This is not only done through the way they are appointed and their conditions of work, but it also comes about through the powers they have. If they currently have the power to investigate and suddenly the government comes along and says that this power is not theirs; taking away that power and giving it to the Police Commissioner and saying that with a delay and under certain conditions magistrates will have the ability to eventually conduct inquiries, that is stealing the powers of the judiciary."

"I think there is a question of constitutional rights, denying magistrates of a power they have."

"If the government argues this way, it means that in the future a government could come and say, for instance, that all theft cases will not be heard by magistrates, it will create a board with persons of trust and they would decide them. That wouldn't be right and it is clear that this undermines the independence and the autonomy of the judiciary."

He also said that the bill goes against the EU treaty as it reduces the standard of the rule of law the country has.

There are certain points the PN agrees with in the bill. "We already declared, not only in the context of this bill, that we agree with the parts of the bill that deal with victims." It is unacceptable, he said, to have a family being left without any information as to what is happening; if there is a suspect and at what stage the inquiry is at while there is an ongoing inquiry into the death of a family member.

"I know that in the past years there were occasions where magistrates, because they understood the particular circumstances of cases before them, kept the family informed and involved in the course of the inquiry. They did so as they felt that victims have rights that the state cannot ignore them, and so this practice had already started. What was needed is to put it into law so that families, victims would be informed with what is happening and they be given the right crystallised in law. We agree with that."

Time limits

The bill would introduce a time-limit for magisterial inquiries. Asked whether, aside from the retroactivity clause which the PN has already taken a stance against, he agrees with the idea, he responded that this is an issue that should be decided by magistrates, not the government. "When a magistrate is conducting an inquiry, the magistrate knows what the inquiry requires and how much time is needed. Are we saying that a magistrate is not capable of deciding how much time they need to conclude an inquiry? I trust that every magistrate knows what they have to do."

He also hopes that with the new system of having four magistrates focusing on conducting magisterial inquiries, that the time issue will solve itself by time. But every case is different, he said. "It is one thing having a case of theft, and another having complicated crimes like money-laundering that require the involvement of a number of people and institutions and foreign jurisdictions. The government is introducing this timeframe amendment not to speed up inquiries, but to kill inquiries. As the way the bill is written means after that time period passes the inquiry stops and it is sent to the Attorney General." With the present law as it stands today, he said, when 30 days pass the magistrate informs the AG that the inquiry will continue and the AG cannot tell the magistrate to stop. "This idea of imposing a timeframe is a vote of no confidence in all magistrates."

The President's role

Asked whether the PN believes the President should sign the bill into law or not, should it pass through Parliament, he said that "it is premature. I believe the President is following what is being said. From what I know of the President, nothing escapes her. The President has different powers from signing or not, she also has moral authority on all the parties involved and I am sure that the President will decide how to conduct herself responsibly in these circumstances.

Aquilina said that if elected to government, the PN would reverse the bill, keeping the "good parts with regards to victims' rights, which we would like to build on".

"The parts which deny people the ability to go to a magistrate and request the launching of an inquiry we would delete and eliminate their effects."

He was asked about the government's argument that the way one can open an inquiry today could be abused. He said that "if the Prime Minister is capable of giving one example of an inquiry which he believes should not have been opened and in which there was some form of abuse, he should mention it, as I have heard of none. I have faith that a magistrate, when it comes to deciding to launch an inquiry, does so according to law and their conscience. I know of no magistrate who would be ready to capriciously launch an inquiry when they know the basis to open one is not there". He said that the best example of magistrates assessing whether to open an inquiry occurred in recent weeks when some magistrates determined there was no basis to proceed with one. "A magistrate isn't forced to open an inquiry when asked, the magistrate has to be convinced."

"Either we trust magistrates, or we don't. I trust them, that when it comes to whether or not to launch an inquiry, they decide well." he said.