Reading between the lines

Lately, the parliamentary secretary responsible for justice, Carmelo Mifsud Bonnici, declared the government's intention to introduce wide ranging reforms regarding magisterial inquiries. It seems that such reforms have been in the pipeline for quiet some time and that a certain backlog of inquiries pending before the Gozo court has prompted the parliamentary secretary to continue to stress the need for such reforms.

Though positive reforms are undoubtedly always welcome, here again one must not be too hasty to revamp our judicial system unnecessarily. In criminal law, the Maltese system is a hybrid one, based both on UK law and Italian law.

The function of our Magistrates' Courts as courts of criminal inquiry is based on the Italian module. The scope behind this juridical notion is to strengthen transparency and independence in the more serious criminal investigations, which system continues to afford greater democracy in the country. Thus, reforms aimed at limiting or weakening the role of inquiring magistrates are definitely far from welcome. On the other hand, amendments to our Criminal Code aiming at expediting the procedure in criminal inquires are a step in the right direction.

With regard to future reforms our Minister of Justice has, for example, already hinted in Parliament that it is the government's intention to restrict and circumvent the way experts are nominated by the inquiring magistrate. To date the presiding magistrate is at liberty to appoint any person he deems fit to advise him on any particular issue. It seems the government is steadfast in removing this judicial discretion and wants instead to appoint a list of experts from which list our courts would be bound to select experts.

I dare say this system is far from ideal since it could interfere directly in the independence of the judiciary. In this respect we must keep in mind that, occasionally, inquiring magistrates are called to investigate the workings of the government itself and, therefore, would surely feel hampered if they would have to be reliant on experts appointed by the government. Other criticism levelled at the present system is directed at the manner in which certain magistrates are selected to carry out public inquiries.

As a point of interest, such inquiries are not always instituted via the police when there is suspicion that certain offences would have been committed but can be initiated upon the complaint of a private party who can wait for a particular magistrate to be on duty to present his complaint. This can lead to forum-shopping, which is not an ideal situation.

Worse still, it has become the practice over the years for the government of the day to select a particular magistrate or retired judge to hold public inquires with regard to issues of national interest, which practice similarly can lead to a lack of transparency.

In the light of all this it transpires that future amendments should be aimed at reforming such anomalies. It appears that the best option would be to have a pool of magistrates dedicated to conducting criminal inquiries and all public inquires whatever these may be. Inquiring magistrates should also be granted the authority of carrying out inquiries ex officio when they have a reasonable suspicion that abuse or criminal activity would have been carried out.

The idea of introducing an inquiring magistrate with wider powers in order to be in the best position to combat illegal activity and even abuse committed by the public administration had been proposed in the Labour Party's manifesto of 1996 and perhaps it is time again to revisit the said proposals.

The role of inquiring magistrates should certainly be strengthened and not weakened because this office should further contribute to the system of checks and balances required in any democracy.

Unfortunately, judging by the way government ministers are commenting on the matter, it seems clear, from the undertones, that the Minister of Justice is intent on restricting and diminishing the role of inquiring magistrates and not the opposite, as is being suggested here.

This would indeed prove to be most unfortunate because such reforms will continue to weaken the role of our judicial organ of state to the detriment of one and all.

Dr Herrera is a Labour member of Parliament.

Harry Vassallo's article is not appearing this week.