Alex Sciberras, Lawyer

A lot has been said about the implications of the June 3 election result on the political landscape and the Nationalist Party’s failure to win the people’s trust. The electoral campaign, however, raised questions that need to be maturely debated.

The debate concerned issues of good governance, generally, and the strength of institutions more specifically. The PN and many newspaper editorials insisted that ‘something is rotten in the state of Denmark’ and that our institutions, when faced with allegations of corruption by high public officials, were found severely wanting.

Those harbouring such notion of perceived institutional failure argue it is high time we set up the office of an investigative magistrate, able to initiate investigations of his own accord. This, they say, is the only way to ensure accountability. Both as a citizen and as a member of the legal profession I remain unconvinced.

Firstly, such arguments are all based on a forced perception that our institutions have failed and are ill-equipped to deal with such matters. This smacks of political convenience and a narrative aimed at supporting a purely partisan agenda. The hollowness of such false indignation did not go unnoticed by the electorate that has resoundingly rejected it.

If we are truly to mature as a democracy, we need to move away from tribalism

It became all too easy and, I dare say dangerous, to take populist swipes at the Commissioner of Police and the Attorney General. The fact that institutions do not concur with one’s world view and expectation does not make them any less effective and a subjective perception of their failure does not make it true.

Recent events have indeed shown that our legal system is well equipped to deal with such eventualities, even in cases of serious allegations of wrongdoing by the government. The Egrant inquiry is the perfect example.

Any citizen that has evidence of criminal activity and fears that institutions tasked with their investigation will turn a blind eye can approach a sitting magistrate and present the evidence in hand for his consideration. This is a fundamental power we all enjoy and it was a shame that it had to be the Prime Minister himself to show the way.

It was, in fact, very telling that it was only after the Prime Minster took action in requesting a magisterial inquiry on allegations levelled against him and his family that those who had been harping about institutional failure took action. This coincidence, I believe, was also not missed by the public.

Secondly, allowing for judicial activism, as would be the case with empowering sitting magistrates to initiate investigations of their own accord, is neither warranted nor desired. In the context of the local, highly-charged partisan politics, where all issues are fought on the basis of party lines and allegiances, judicial activism will be seen suspect by the public and, therefore, diminish the independence and impartiality of our judiciary. That would be a real institutional failure.

Though much has been done by this administration to further empower institutions to deal with wrongdoing by public officials more can be done. The answer is not in judicial activism but in the proposals put forward by the Law Reform Commission, particularly the setting up of the Public Prosecutor’s Office, acting independently of the Attorney General.

If we are truly to mature as a democracy, we need to move away from tribalism. It is only through serene public debate based on reasonable arguments that we can regain normality. While some remain hell-bent on keeping alive the vitriol and arrogance so overwhelmingly renounced by the electorate, I remain hopeful that, as a nation, we will move on to better times.

Jason Azzopardi, Nationalist MP

One of the signal proposals by the Nationalist Party during the electoral campaign was the setting up of the office of a special inquiring magistrate on corruption. We still vehemently believe that, before our country’s reputation and institutional bulwarks hurtle any further downhill, we need to shore up our institutional framework to investigate and fight corruption tooth and nail.

At present, upon receipt of any report, information or complaint (almost always by the police or the Attorney General) with regard to any offence liable to the punishment of imprisonment exceeding three years, and if the subject matter of the offence still exists, the duty magistrate kick-starts an inquiry to collect, preserve and indicate any material evidence.

We need to shore up our institutional framework to investigate and fight corruption tooth and nail

The inquiry’s concluding report – the process verbal - is drawn up within 60 days from the genesis of the inquiry. This 60-day time-frame is honoured more in its breach than in its observance. Any criminal action after such conclusions is then undertaken by the police, never by the inquiring magistrate.

Note that the duty magistrate has to juggle time, resources and schedule between district sittings, wherein hundreds of people, including policemen, lawyers and witnesses have to appear weekly before him/her, and conducting time consuming inquiries. It is public knowledge that the four magistrates conducting the complex inquiries related to the recent money laundering allegations involving politically exposed persons are having to postpone many court sittings to the consternation of hundreds of citizens.

The inquiring magistrate is presently at the mercy of a report being made to him, many a time by the police. Furthermore, and something which has vexed me no end in recent months, an inquiring magistrate is assisted by the members of the police force who can have a vested interest in either not allowing the whole truth to come out or, even worse, could have colluded with the person suspected of having committed the crime.

It makes me livid knowing that a very senior police officer was heard gloating (yes, gloating) in a court corridor some days ago that major incriminating evidence in one of the high-profile inquiries underway had already been removed before the inquiry started.

The PN proposal to have a special inquiring magistrate focusing solely on the fight against corruption will address these deficiencies in the present system.

First of all, such a magistrate will be able to start inquiries on his own initiative apart from doing so after a sworn report is made to him relating to any corrupt practices. He will have his own staff and detailed officials and will not have to rely on police officers.

He will not have to juggle between the inquiries and other court work because his duties will be specifically to investigate and prosecute cases of corruption both in the Magistrates’ Court and in trials by jury.

He may not be assigned other court work during the time he is assigned such a role and it will be the President of the Republic who assigns him this special investigative role for a fixed period of time, say, seven years.

In the exercise of these duties, the special inquiring magistrate shall act independently and shall not be subject to the control or direction of any other person or authority.

The PN’s proposal included the widening of the definition of corruption to include not only bribery but also the crimes of unlawful exaction, extortion, embracery, trading in influence, malversation and embezzlement by public officers or servants and the malicious violation of official duties. All these will fall under the sole aegis of the special inquiring magistrate.

We challenge the government to enact such a law forthwith.

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