Stress test for rule of law
Nationalist MP Jason Azzopardi asked Home Affairs Minister Michael Farrugia in Parliament why the Police Commissioner failed to follow orders issued by Magistrate Aaron Bugeja, who had conducted the Egrant inquiry, to press “particular criminal charges” against “a particular person”.
Dr Farrugia replied that the Police Commissioner was aware of the magistrate’s report. He continued: “The police are following all the conclusions, instructions and recommendations made by the inquiring magistrate in the same inquiry. I am informed that, at this stage, the police are not in a position to give more information on what they were asked to do by the magistrate so it would not prejudice its investigations.”
The minister politically responsible for the police did not deny the orders mentioned by Dr Azzopardi were, in fact, issued.
The Criminal Code lays down that when, in the course of a procès-verbal, a magistrate orders that a person be arraigned, the Commissioner of Police “shall proceed accordingly”. If the Police Commissioner has any doubts about such instructions, the law allows him to consult with the Attorney General “who may direct that no proceedings are to be taken or that the proceedings to be taken are to be for a charge or for charges different from those specified by the magistrate”.
The Attorney General would still be able to direct otherwise if fresh evidence emerges. However, when he feels that no proceedings are to be taken, he will have to report to the President of Malta explaining his decision.
As Chief Justice Emeritus Vincent De Gaetano pointed out in a public lecture on the rule of law last December, the Attorney General is not bound by law to make his reasons public. Neither is the President.
Thus, a magistrate’s order can be ‘ignored’ by a member of the Executive – the Attorney General – who only has to ‘justify’ his stand by making a report to the person vested with the executive authority of Malta.
Furthermore, as Dr De Gaetano had noted, there is no possibility of judicial review of a decision not to prosecute.
Of course, one can also keep delaying making a decision to prosecute until the crime indicated becomes time-barred. It must be pointed out, though, that in cases of corruption or bribery this period has been substantially extended if not altogether removed in certain instances.
In his reply in Parliament, the Home Affairs Minister seems to have forgotten that the Egrant inquiry was completed last July. Which means there was ample time to do what needed to be done and not just with regard to that part where the magistrate found no document directly linking Egrant to the Prime Minister, his wife or his family.
This state of affairs can only raise further questions on whether the rule of law still prevails and whether supposedly independent institutions, like the Attorney General and the police, have been hijacked by the government.
What Chief Justice Emeritus Silvio Camilleri had said in his last address at the opening of the forensic year in October 2017 applies: “The procedure laid down by law for the implementation of the rule of law is a good and functionable one but presumes that the authorities on whom relies the entire procedure all carry out their duties without fear or favour.”
This is a Times of Malta print editorial