Malta did not have a truly independent judicial investigation system, Chief Justice Emeritus Vincent De Gaetano said.
“We have heard in recent months of people awaiting the outcome of this and that magisterial inquiry. In Malta, we have nothing comparable to the autonomous and functionally independent judicial investigations on the continent,” Dr De Gaetano told an event marking the 70th anniversary of the universal declaration of human rights last week.
He noted that, according to the Criminal Code, an inquiry conducted by a magistrate was primarily intended to describe and preserve the material traces of an offence. Only exceptionally would a magistrate order that a person be arraigned and even in such cases, their decision could be changed by the Attorney General.
The Attorney General, a member of the executive, was not bound to say publicly why he had decided so, Dr De Gaetano pointed out.
The Attorney General would communicate his reasons to the President of Malta, who was not bound to go public either.
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“So, no possibility of judicial review of a decision not to prosecute, as you have in England and Wales, existed in Malta,” Dr De Gaetano, who now sits on the European Court of Human Rights, said.
Dr De Gaetano noted that a magistrate was functionally dependent on the executive police when conducting an inquiry.
No possibility of judicial review of a decision not to prosecute, as you have in England and Wales, exists in Malta
The former chief justice admitted that although he had been working in law for more than 40 years, he still had difficulty defining what the rule of law, the theme of his paper, really meant.
However, he underscored the fact that for the rule of law to be effective there had to be “a genuine predisposition, an attitude, of those in any position of power to give practical effect to these functional aspects of the rule of law, in other words to go beyond merely paying lip service”.
He recalled that the Venice Commission, an advisory body of the Council of Europe, listed six points providing a sort of checklist or benchmark against which states could measure where they stood in terms of the rule of law. They were: legality, legal certainty, prevention of abuse/misuse of powers, equality before the law and non-discrimination, access to justice and, finally, practical and effective measures to ensure the rule of law was not undermined.
Dr De Gaetano asked whether the process of enacting laws was transparent, accountable, inclusive and democratic?
“The first temptation is to say that we pass this test with flying colours. But do we really?” he asked.
He queried, for example, whether, given the wording of the law, a citizen could challenge the validity of the appointment of people in ‘positions of trust’ in the public service and their suitability.
The human rights judge referred to the “increasing practice” of resorting to legal notices that, he pointed out, were not debated in Parliament.
By law, an MP could move a motion to change or annul such subsidiary legislation. Dr De Gaetano wondered, however, whether part-time MPs were equipped to vet such subsidiary legislation, adding that, even if these were annulled, it would not affect any action that could have already been taken in terms of that same legal notice.
And how could the public ensure members of public commissions and committees were the best qualified for the job?
“Only if they are fully qualified and competent and objectively independent can they act as a check on abuse or misuse of public powers,” the former chief justice remarked.
Referring to the Permanent Commission Against Corruption, Dr De Gaetano noted its powers were limited and, more critically, it lacked resources in terms of administrative or investigative manpower.
“Are the two main political parties really interested in having a meaningful and independent instrument in the fight against corruption or are they content with paper tigers?” he asked his audience.
What practical and effective measures were in place to ensure that the rule of law is not undermined by corruption and conflict of interest by people in public office or administering public services?
Corruption, Dr De Gaetano said, led to arbitrariness and abuse of power, distorted a nation’s economy, caused unnecessary financial burdens on the citizens and could lead to dissatisfaction that law and order would break down.