The state of Malta enjoys at least five constitutional statuses: independent (September 1964), republican (December 1974), free (March 1979), neutral and non-aligned (January 1987), and - more recently - dysfunctional with elements of a mafia state (April 2025).

On Wednesday 2 April 2025 government approved in the House of Representatives a Bill for an Act of Parliament to amend the Criminal Code that will in practice grant immunity to the Prime Minister, ministers, and parliamentary secretaries and their persons of trust from criminal prosecution. This immunity works out in practice by having recourse to an anti-democratic legal mechanism that forbids the sovereign people to request an inquiring magistrate - an independent arm of the state - to investigate corrupt ministers and persons enjoying positions of trust within government, the latter positions being in breach of the Constitution.

Both political parties represented in the House of Representatives have contributed to the creation of a mafia state. The Nationalist Party launched the persons of trust position in government ministries and the Labour Party developed it further; the Nationalists drafted a lopsided amendment to the Criminal Code that whilst giving a much needed right, made it unworkable by raising several hurdles for an honest public-spirited citizen to approach the magistracy to investigate ministerial corrupt behaviour.

The Nationalists established a toothless Permanent Commission Against Corruption to whitewash all allegations of corruption against ministers and the Labour Party appreciated its usefulness by retaining it in operation to ensure that no minister would be prosecuted for corruption in the courts of criminal jurisdiction. The Labourites went further than the Nationalists and did away with the right of the sovereign people to request the launching of a magisterial inquiry in case of ministerial corruption. When in office, both the Nationalist Party and the Labour Party exercised considerable influence on the Police and on the Attorney General so that these two officers of the state entertain second thoughts before prosecuting a minister in court.

Democracy - the little that existed - in criminal procedure has been knocked down through making it totally impossible for the people to have access to a court when they reasonably suspect or have evidence that ministers are corrupt. The only remedy that they enjoyed - defective as it was - is no longer. A democratising element in the justice sector has been removed. It is only in the case of trials by jury that the people still have a limited say in the justice system as decision makers. Otherwise, the people retain a victim status in the judicial system for their rights are trampled upon by the same body that is called to protect them. We all know of the delays that courts take to deliver justice and by the time when they get round at it, the remedy would be futile.

By de-democratising the criminal procedure institute of magisterial inquiries, the government has granted immunity from criminal action to corrupt ministers. Henceforth, it will not be possible for any minister to be charged in court even if caught red handed for s/he already knows beforehand that the Commissioner of Police and the Attorney General will be looking the other way when such a crime is committed. On the contrary, the judicial arm of the state - contrary to the Ombudsman, for instance, does not have a concurrent power of carrying out an own initiative investigation. The inquiring magistrate's remedy sets in motion only when the Commissioner of Police decides so. The inquiring magistrate is totally at the mercy of and completely dependent on receipt of a report by the Police to be empowered to launch a magisterial inquiry. The democratic deficit that the new law on magisterial inquiries has introduced in criminal justice is quite a dangerous precedent for it can be extended - without any changes needed in the law and without parliamentary supervision - to exempt from criminal responsibility corrupt public officers of whatever rank they might be, whether acting in their own private interest or in cahoots with a supervising ministerial authority.

The question that must be asked at this juncture is what remedy does the public have - once dispossessed of such a democratic right to participate in the proper administration of criminal justice - to request that they be restored in their own rights. I see four possible avenues: the political, the judicial, the popular, and the international.

The political remedy consists in the people putting pressure on the government to redress its own mess. However, it is clearly written black on white on the wall that government's declared policy is to protect corrupt ministers, not to prosecute them. Instead, it grants them immunity from the criminal action. With ministers growing a thick skin and being successfully immunised against correct ethical behaviour, I consider it to be next to impossible for the government to find the moral compass that it has lost and reintegrate the people in their right of democratic participation in the judicial process. When the state is governed by an autocratic prime minister and an oligarchic cabinet of ministers, arguments advancing democracy will simply prove futile. Hence, to go down the political redress avenue will bear no fruit.

Then there is the judicial remedy. Of course, one might argue that government's action contravenes the rule of law and is undemocratic for it has removed democracy from the judicial process. It can also be stated that Parliament has deprived the public of a vested right whilst denying them access to a court. The very first article of the Constitution proclaims Malta to be a democratic state but we all know that, as a matter of fact, Malta is an oligarchy. Yet the constitutional remedy will end up to be flimsy for the Constitutional Court - that adopts a policy of appeasement towards government as did past Presidents and the public sector - will have no difficulty to determine that the term 'democracy' in our Constitution simply means that the electorate has the right once every five years to cast their vote, that the democratic model we adopt is not the Athenian one but the indirect representative version, and that in the five-year period from the formation of a government and dissolution of parliament, the people are simply denuded of their right to participate in the governance of the state, including in the instant case in the judicial arm. As to the rule of law, the Constitutional Court will surely tell us that this is quite a nebulous concept once it is nowhere defined in any law and that, to our displeasure, it does not necessarily find application within the realm of magisterial inquiries. As to the question of a vested right, the State Advocate will use all the armoury in that office's arsenal to argue that this doctrine is inapplicable whilst access to an inquiring magistrate is not the same as access to a court.

There is then the popular avenue, that is the remedy that the people will grant to themselves in default of a remedy being provided thereto by a government-appeasing judiciary and a government-controlled legislature. I am not referring here to some form of violent or illegal remedy such as a rebellion, riot, insurrection, or revolution. Nothing of that sort. On the contrary, I have in mind the civilised exercise of a democratic right - the abrogative referendum. What I am proposing is that the article or articles in the new law to be published in the coming days that celebrate Malta as a mafia state are revoked. There are surely good provisions in the new law on magisterial inquiries that should be retained. But that provision/s that grants anticipatory and perpetual immunity to corrupt high ranking administrators should be subjected to an abrogative referendum, the sooner the better, so that the sovereign people can teach government a lesson in democracy and on the rule of law, and that democracy implies that the sovereign people should continue to participate - as hitherto - in the democratisation of the judicial branch of the state.

Of course, this is a Hobson's choice riddled with several difficulties even if, for argument's sake, the people decide in an abrogative referendum to do away with the provision that has enshrined the status of a mafia state in the Criminal Code - that very same law whose main purpose is to fight back, prosecute, and defeat the mafia, whether they happen to be in the cabinet room or elsewhere in Malta. Furthermore, the abrogative referendum is limited in purport: it can only revoke a provision of a law but not substitute it: Eddie Fenech Adami was not very generous when he introduced the abrogative referendum - there exists no right to initiate legislation by the people through a referendum. In other words, whilst the old law - defective as it was but better than nothing - is by far better than the new law, the point still remains that the abrogative referendum will not allow the people to themselves legislate to allow the magistracy, like the Ombudsman, to conduct own initiative investigations.

Nor will the people be allowed to remove all the stumbling blocks that the office of State Advocate will erect to deprive the sovereign people from participation under the old law regulating magisterial inquiries. Nor will it allow the sovereign people to introduce a provision in the Criminal Code to the effect that the magistracy should not entertain any preliminary procedural pleas raised by the office of State Advocate intended purely to halt the carrying out of a magisterial inquiry in the case of high ranking corrupt government administrators rather than securing the ends of justice. Indeed, the onus should be placed on the State Advocate for a magisterial inquiry not to be launched if s/he can prove that the ends of criminal justice will not be served if such magisterial inquiry on corrupt government officials is launched.

Finally, there is the international remedy, that is, recourse to the Council of Europe, GRECO, the FATF, the European Commission, and several other international bodies that follow the democratisation (or lack of it) process in Malta. Some of these are NGOs that have no coercive power against Malta apart from the persuasiveness of their reports. Others have coercive powers but prefer not to use them such as the European Commission who year in year out dishes out a predictable stock report on the rule of law in Malta, listing several items that need improvement, a number of which being carried forward from one year to another, and rejoice in the following annual report to note that government has partially implemented one of those manifold recommendations on their list, with the other twenty odd completely unimplemented recommendations falling by the wayside.

But at least the EU bureaucracy can claim to have registered progress from one annual report to another, justify its employees' salaries, and refrain from taking embarrassing action against a member state, even if that state happens to be in flagrant breach of its rule of law duties under Article 2 of the Treaty of European Union that happens to state that the  'Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail'. Government can also boost that the Commission has given it a partial clean bill of conduct. All are satisfied. All lived happily ever after! So even this avenue must be discarded.

In sum, the future is not bright for the rule of law and democracy in Malta. But not all is dark and gloomy for Malta: at least we can console ourselves as a nation that it is very bright and shiny for abuse of power, administrative secrecy, unaccountability, malpractice, bad governance, maladministration, financial impropriety, unethical standards, and corruption. And we have also another milestone to celebrate in addition to being independent, republican, free, neutral and non-aligned, an EU member - that of a dysfunctional with elements of a mafia state.

Now that Jason Azzopardi has been knocked down, next on government's to-do list is to eliminate Arnold Cassola who has the vicious habit of complaining to the Auditor General, the Ombudsman, and the Commissioner for Standards in Public Life on government abuse in full homage to that rude word known as 'accountability' (or lack of it!). It is unfortunate that all the institutions of the state and the international community have failed us so far. Hence, the people must take the bull by the horns and resort to an abrogative referendum.

Kevin Aquilina is Professor of Law, at the Faculty of Laws, University of Malta