Is there a right to be heard in a magisterial inquiry as suggested by the present and former prime ministers?

Much has been said about Prime Minister Robert Abela’s fumbling and undignified press conference last Monday, and I will not write another commentary. I am writing instead about a point that Abela repeatedly made – and that former prime minister Joseph Muscat has also been making on Facebook – a point that throws doubt on the integrity or fairness of the magisterial inquiry.

It is the charge that a number of those set to be prosecuted were not even spoken to, or informed that they were investigated, or interrogated – Abela repeatedly alluded to this as something that raises questions on the integrity or fairness of the magisterial inquiry. Abela also questioned whether the inquiring magistrate only heard from one or more than one of the suspected as a box ticking exercise.

I want to tackle this subject because there seems to be lack of clarity about the validity of what Abela said on this point.  

The following clarifications can be made:

1. The purpose of an in genere (as magisterial inquiries are called) inquiry in Maltese law is to document and preserve any traces of a crime, suspected or actual, in a form that can be used for any eventual criminal prosecution. The magistrate then makes recommendations for prosecution or otherwise on the basis of the findings of the inquiry, and the secret report – called process verbal – is sent to the attorney general to be used as evidence in any eventual prosecution.
2. There is no such thing as a right to be interrogated or to have your say by an inquiring magistrate. There is a provision in law that states that in inquiries that take more than 60 days, any interested party can request to testify or request some else (or others) to testify. Acceptance of such a request is at the discretion of the inquiring magistrate, after having heard the reaction of the Attorney General to the request.
3. Overall, there is no obligation in human rights principles or jurisprudence (caselaw) for the suspected or those eventually charged to be interrogated or given a chance to have their say in the course of the inquiry or any criminal investigation. Human rights courts – the Maltese constitutional court as well as Europe’s highest court, the European Court of Human Rights – have established over the years that issues of fair hearing and fairness have to be assessed in the context of the entire process in court (there would be exceptions if one element in the whole process would have played a pivotal part in the prosecution or conviction). In this case, those charged will have plenty of time in court to testify, to mount a defense – including the submission of any evidence or summoning any witness that they deem relevant – and have an equal chance to make their case in court. So any argument suggesting that the rights of the suspected or investigated were breached or the inquiry was unfair simply because they were not interrogated or allowed to submit evidence for the purposes of, or in the course of, the inquiry would be flimsy, if not a nonstarter, in a human rights court.  
4. It is more unusual for the police not to question someone prior to charging him or her, but once again there is no human-rights obligation to do so. Since we have not seen the magisterial inquiry, we do not know what hard evidence the inquiry has gathered against the accused and hence cannot form an opinion on the lack of questioning by the police, or an opinion on the arraignment via summons or arrest. 
5. If Abela has doubts on the timing of the completion of the inquiry in view of the upcoming European Parliament elections, or the integrity of the inquiry or inquiring magistrate, then the Constitution empowers the justice minister to make a complaint against the magistrate that would be investigated by the Commission for the Administration of Justice. The Constitution also empowers the justice minister to be a party in such proceedings and summon any witnesses that he may deem relevant to substantiate his complaint.

   

6. Abela also said during the press conference that he believes that the people indeed ought to be able to scrutinize the conduct of members of the judiciary – and he made this argument as part of his attempt to motivate Labour voters to vote in next month’s European Parliament elections.
7. What he did not say is that prior to 2016, everyone could complain against a member of the judiciary. But in 2016 the law was changed by the government headed by Joseph Muscat – the opposition also voted for the change – in a way that now only permits the justice minister or chief justice to make complaints.