We refer to Bill No. 125, published in the Government Gazette on 31 January 2025, entitled “An Act to further amend the Criminal Code, Cap. 9”.
Bill No. 125 amends the Criminal Code and drastically weakens the right of individuals to petition for magisterial inquiries, to a point where the right is effectively extinguished.
- The new law will effectively make it impossible for inquiries such as the VGH and the Electrogas inquiries (and their consequent prosecutions) to ever happen again because:
- Requests for inquiry from private persons will need to be backed by evidence of a standard identical to that achieved after the conclusion of an inquiry. A petitioner will need to prove someone else’s guilt based on a balance of probabilities before their request for an inquiry can even be considered. This means that the citizen must now prove a case on the basis of evidence that would be admissible in an eventual prosecution before a Magistrate even starts to collect admissible evidence. This standard of proof is far higher than the prima facie requirement for the indictment of a person who has been charged with a crime, at a much later stage of proceedings.
- Requests for an inquiry from private persons will not be heard in a court of law for at least 6 months from when the report by the individual requesting an inquiry is first filed. The Criminal Court would then consider, behind closed doors, whether to overrule a possible police request to further extend this 6-month timeframe.
- If prosecutions in cases based on findings of an inquiry requested by a private person fail to secure convictions, the individual who first asked for the inquiry will face draconian penalties worth millions of euros, making it pre-emptively impossible for any individual to take such a risk.
- The new law reduces the effectiveness of criminal inquiries (whether they follow a request to commence from a private individual, the police, or the AG) because:
- Magistrates now have tighter deadlines to conclude inquiries without any evidence of operational efficiency gains in the tools available to them;
- Magistrates will have reduced access to external experts compared to their current resources.
- The new law creates imaginary rights for suspects in an inquiry that do not exist at present and have no basis in the constitution or human rights law. It undermines arguments made by the state in response to a claim of these imaginary rights made in court by former prime minister Joseph Muscat to secure his immunity from prosecution in the VGH case.
- The existing right of requesting a reconsideration from a higher court of a decision to reject an individual’s petition to start an inquiry is being abolished.
- The new law is retroactive and cancels inquiries requested by private individuals on suspicion of corruption, where the suspect is a prominent government minister. Even if these inquiries have already started under existing law, the law is effectively written ad hominem.
In a context where the only effective tool available to Maltese citizens to ensure that grand corruption is prosecuted has, over several years, proven to be their right to petition magistrates to conduct inquiries, the removal of such a right is a serious backsliding in the country’s rule-of-law framework.
The gravity of the matter is best judged against the fact that the Maltese police consistently refuses or neglects to investigate gross breaches of law by the State’s highest officials, even where these are revealed by the State’s integrity institutions, or exposed and reported by journalists in Malta at significant risk to life and limb.
That risk has resulted in the assassination of Daphne Caruana Galizia, whose murder was motivated by an attempt to cover up the grand corruption she was exposing.
A public inquiry into her murder found the State responsible for her death as a result of the government’s de facto policy to allow and guarantee impunity enjoyed by corrupt holders of political office and their associates. That inquiry documented collusion and wilful negligence by the police and the prosecution service, as well as other agencies of the Maltese state, intended to perpetuate the impunity to the point that whenever private citizens found themselves in conflict with this mafia, the state would conspire to undermine honest citizens and favour criminals.
We argue that this Bill refines and consolidates the government-perpetrated effort to undercut any resistance to corruption and organised crime and to guarantee the impunity of the perpetrators.
We find this Bill a direct assault on the last vestiges of the rule of law, a straightforward act of intimidation against civil society activists and journalists campaigning or reporting on corruption, and a gross encroachment by the executive branch on the long-standing tradition of judicial independence in the area of magisterial inquiries.
We argue that this measure amounts to a regression in the country’s structural capability to safeguard the rule of law and, consequently, that it constitutes a breach of the government’s constitutional obligation to uphold the rule of law and to govern democratically, as well as Malta’s obligation under the Treaty of European Union to guarantee the rule of law.
In this sense, therefore, it is our view that should the Bill be adopted it would amount to a breach of the principle of non-regression established by the Court of Justice of the European Union in the case C-0896-2019 Repubblika v Il-Prim Ministru. We therefore urge the European Commission to earnestly investigate this breach in conjunction with the requirements of Article 2 of the Treaty on European Union.