A hurdle race: Making it harder for private citizens to request magisterial inquiries

Government has wasted no time in putting forward a Bill that will radically alter how a private individual can ask for a magisterial inquiry.

This evening, the discussion on the Second Reading of the Bill, piloted by Justice Minister Jonathan Attard, is expected to start in parliament.

Bill 125 was only published in the Government Gazette on 31 January with no prior consultation with key stakeholders. It contains changes to the manner by which magisterial inquiries, in legal jargon known as in genere, are conducted. These inquiries are intended to gather and preserve evidence in cases that can range from fatal car accidents to suspected cases of corruption.

Magisterial inquiries can be requested by the police and the Attorney General – this is often the case for fatal accidents. But the existing law also allows a private citizen to directly petition the courts to seek a magisterial inquiry into suspected wrongdoing.

Although some of the proposed amendments, such as improving the standing of victims and suspects in such inquiries, apply to all types of inquests, it is the private requests for inquiries that are in for a major overhaul.

Bill 125 effectively removes the right of ordinary citizens to make a direct request to the duty magistrate for an inquiry, forcing them to first file a police report. It also introduces several hurdles in the process.

Significantly, the new law, when approved, will be backdated and so any requests for inquiries by private citizens that have not yet started, will be automatically shifted to the police or stopped.

A threat to the rule of law

Anti-corruption campaigners fear that the proposed changes to magisterial inquiries will hamper the fight against corruption (Photo: James Bianchi/MaltaToday)

The Nationalist Party has voted against the Bill at First Reading stage, an unorthodox move but one intended to show its complete opposition to the proposed amendments. The PN has also pledged to reverse any changes that will stifle the right of ordinary citizens to request a magisterial inquiry, once it is in government.

Meanwhile, anti-corruption NGO Repubblika has produced a 45-page document with its analysis of the proposed changes, including clause-by-clause feedback on the Bill proper.

In its conclusions, the NGO states that the Bill is a “direct assault on the rule of law” and contributes to democratic backsliding.

“If passed, Bill 125 will cripple Malta’s ability to investigate and prosecute corruption as long as the police fail to do their job, ensuring impunity for politicians and their associates,” Repubblika states.

The document notes that under the proposed changes the existing framework that allows a magistrate to open an inquiry if there was “reasonable suspicion” that a crime may have occurred, will be upended since a petitioner would have to provide “admissible evidence proving a suspect’s guilt on a balance of probabilities” before an inquiry can begin.

“This completely reverses the role of an inquiry – designed to gather and preserve evidence – by requiring private individuals to build an entire legal case before a magistrate can investigate,” Repubblika says.

The NGO has called a protest against the proposed inquiry amendments for Sunday 16 February.

READ ALSO: Chamber of Advocates slams magisterial inquiry reform

MaltaToday’s analysis of Bill 125

MaltaToday has undertaken an independent assessment of Bill 125. The following are the key observations that emerge from this exercise.

Joseph Muscat supporters outside the law courts in Valletta in 2024 when the former prime minister was charged with corruption in the Vitals hospitals project following the conclusion of a magisterial inquiry (Photo: James Bianchi/MaltaToday)

THE GOOD

Magistrates’ pool: Amendments officialise an earlier decision to have a pool of magistrates dedicated to carrying out inquiries.

New rights for victims: Victims of crime, or their heirs, will be granted an electronic copy of the inquiry report, known as the process verbal, without paying for it. They will also have a right to be informed of the progress of an inquiry every six months.

Access to information: Public authorities with an investigative function will have access to the evidence and testimony collected during the course of a magisterial inquiry. The existing law already makes similar provisions for the Occupational Health and Safety Authority. The list of public authorities that would be granted access to inquiries will be published in the Government Gazette by the justice minister.

Oath for petitioner: A new proviso will require a private citizen who requests an inquiry to file their report under oath. This new obligation means that criminal action could be taken against the individual for perjury if they intentionally lie or produce false documents to substantiate their request. This has the objective to make petitioners more responsible for their claims.

New rights for suspects: When a suspect is required to testify in front of the magistrate conducting the inquiry, the person will be informed of their right to be assisted by a lawyer and will also be given disclosure of the facts at hand. This positive addition to the law ensures that persons who are questioned during the course of an inquiry enjoy the same rights as suspects who are interrogated by the police.

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THE MAYBE

Expert fees: Benchmarking of fees charged by court experts helps keep costs at a reasonable level but it would be a mistake if this is used to prevent magistrates from recruiting foreign experts, who may charge higher fees, if the necessary expertise in Malta is limited or unavailable. Sometimes, the search for the truth, especially in complex cases involving financial crime, requires that millions of euros are spent.

Petitioning court to be heard: A person who suspects that they can be the subject of an inquiry can petition the court and ask to be heard. The law will make it incumbent on the magistrate to hear such an individual. This addition to the law allows the possibility of all people to be heard and although it does introduce an imposition on the magistrate, it can avoid contestations at a later stage. Nonetheless, while government is proposing this new right, through the State Advocate it is contesting former prime minister Joseph Muscat’s constitutional case in which he claims his rights were breached because the magistrate in the Vitals case refused to hear him despite his requests to testify.

Time limits: The new law extends the timeframe for the conclusion of a magisterial inquiry to six months, while allowing the possibility of extensions, which in complex investigations are always necessary. However, the new law will also put a two-year cap on inquiries to conclude at which stage all acts of the investigation will have to be passed on to the AG. The AG can ask for the continuation of an inquiry if they deem fit. This proviso is good insofar as it addresses concerns over inquiries that keep dragging on for years but while it aims for greater efficiency this will only work if magistrates have adequate resources at their disposal, including access to a multitude of experts so that investigations do not get bogged down. It needs to be emphasised that the investigation of financial crime and corruption is a time-consuming exercise that more often than not requires also cooperation from foreign jurisdictions that may not always be forthcoming. A mitigating factor could be having no cap on the timeline for a defined number of cases such as corruption, money laundering and other financial crimes.

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THE BAD

Limits on investigation: An inquiry requested by a private citizen, if carried out, can only probe the suspect indicated in the original request thus limiting the magistrate’s remit irrespective of any other wrongdoing the inquiry can come across. Magisterial inquiries initiated at the behest of the police or the Attorney General have no such limitation.

Court petition after six months: It is only after a lapse of six months from when the police report was filed that the individual can petition the Criminal Court to order the opening of a magisterial inquiry. This effectively is a vote of no confidence in magistrates since today they alone decide whether an inquiry should go ahead or not.

AG in charge: Magisterial inquiries will be put under the “supervision of the Attorney General”, which can be interpreted as a vote of no confidence in magistrates.

Double clearance for expert fees: A magistrate will have to seek the Chief Justice’s clearance for any expert expense that exceeds €50,000 and before granting approval or otherwise, the Chief Justice will have to consult with the AG. This effectively puts the AG in control of the inquiry, introducing another hurdle that effectively takes the search for evidence out of the magistrate’s hands.

No expert opinion: The role of court experts will be limited to determining matters of fact “without expressing an opinion with regard to the commission or otherwise of the offence”. This proviso effectively stifles the analysis of facts that an expert can make to shed light on their meaning. This is more concerning in complex investigations involving financial crime where a reasoned interpretation of money movements and transactions is necessary to contextualise the facts at hand. The courts already allow expert opinion at trial stage, which raises the question as to why the government wants to stifle it at investigation stage.

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THE UGLY

No direct petition to magistrate: The existing right entitling an ordinary citizen to request a magisterial inquiry by filing a direct request with the duty magistrate is being removed. Private individuals will now have to file a police report. If the suspected crime carries a prison sentence of more than three years and the subject matter of the offence still exists (provisos that exist today), the person filing the police report may also request the opening of an inquest but this is not automatic.

Admissible proof: The Criminal Court shall only consider proof that is admissible as evidence before a court of criminal jurisdiction. It is extremely hard for a private citizen to acquire proof that is solid enough to stand on its own in a court of law, which is precisely why a magisterial inquiry is carried out. The scope of a magisterial inquiry is to find and preserve evidence, using tools that are unavailable to ordinary citizens or journalists. Expecting someone to have admissible evidence at such an early stage is difficult unless it is the police that unearth it during their investigation. Past experience related to the Panama Papers revelations, 17 Black and the Vitals hospitals deal have exposed the unwillingness of the police to probe such cases.

Balance of probabilities: The Criminal Court will have to decide on the ‘balance of probabilities’ whether a magisterial inquiry requested by a private individual should commence. This means a higher level of proof is required in private inquiries than those requested by the police and the AG for which ‘reasonable suspicion’ is enough.

Severe uncapped penalty: If an inquiry does kick off and in the magistrate’s view the suspect was unjustly probed because the claims were ‘unfounded, frivolous, vexatious or abusive of the judicial process’, the person having requested the inquest may be ordered to pay the costs of the inquiry. Such action can only be taken upon the request of the person who was subjected to the investigation and any decision by the magistrate can be appealed. Such an uncapped penalty could run into thousands, if not millions of euros, effectively discouraging citizens from even asking for an inquiry.