Undermining the Separation of Powers in Criminal Investigations. A Bill that Keeps on Giving.
Social Speak
Andrew Drago
27 February 2025
Bill No. 125, proposing reform to magisterial inquiries, has eleven clauses. Each one more troubling than the last. Legal scholars and former chief justices have argued that these amendments do not reform but eviscerate the individual’s right to initiate a magisterial inquiry, a right which has been employed to keep government and its servants in check.
Under the proposed procedure, a complainant must first file a criminal report with the Police. If six months elapse without action, only then may the complainant petition the Criminal Court to instruct a magistrate to initiate an inquiry. But even this recourse is illusory—the Court’s decision is final, unappealable, and contingent on the complainant presenting admissible evidence at the outset. The legislative intent is unmistakable: the Bill constructs a procedural labyrinth barring individuals from seeking a magisterial inquiry, which is ultimately an independent judicial investigation to collect and preserve evidence.
The raison d’être of magisterial inquiries, as established in the case of Repubblika ta’ Malta vs Jason Calleja, is to uphold the separation of powers in criminal investigations. By forcing complainants to endure six months of inertia at the Police’s discretion, this Bill does the opposite. It subjugates the right to initiate a magisterial inquiry to the will of the executive police.
There is however, another executive heavyweight being given gatekeeping powers over magisterial inquiries - The Attorney General. Should the Police determine that prosecution is unwarranted, the matter is referred to the Attorney General. At this stage, the Attorney General may override the Police’s decision and order further investigation or prosecution. Yet clause 4 of the Bill stipulates that if the Attorney General concurs with the Police’s determination that prosecution is unwarranted, the complainant is left without remedy—no six-month threshold, no right of petition, no recourse to a magisterial inquiry.
The implications are chilling. A complainant must first approach the Police. An institution vulnerable to political sway, where evidence may be ignored, discarded, or buried. The matter moves to the Attorney General, who, in the absence of concrete evidence, may or ought to dismiss it outright. The complainant is hereby denied any effective remedy.
The Prime Minister, in the Bill’s second reading, insisted that judicial review remains an avenue of redress, crediting its introduction to this current administration. Yet this is a hollow claim. The judicial review mechanism proposed is toothless. A complainant must first request the Attorney General to reconsider her decision. If the request for reconsideration is ignored or denied, the complainant has two months to file a full-blown lawsuit against the Attorney General before the Civil Court.
But to what end? Even if the Civil Court rules that the Attorney General acted unlawfully, it cannot order prosecution, direct an investigation, or compel the initiation of a magisterial inquiry. At best, the Court can only issue a declaratory judgment, which is ultimately a legal reprimand that takes years to materialise. Meanwhile, evidence is lost. Wrongs remain unpunished.
Equally misleading is the assertion that the judicial review of the attorney general was introduced recently by this government. While Article 469B, introduced in 2020, formally governs the judicial review of the Attorney General’s decisions, such review was already available under Article 469A of the Code of Organisation and Civil Procedure, an article which was enacted in 1995.
The latter provision provided individuals with a six-month period within which to contest administrative decisions on much broader grounds than those stipulated in the 2020 law. Article 469A allowed individuals six months to challenge the decisions of the Attorney General on grounds of constitutionality and lawfulness, principles of natural justice, abuse of power, improper purposes or irrelevant considerations, with the possibility of damages if the decision is unreasonable or in bad faith. While under the new Article 469B, individuals may only challenge the decisions of the Attorney General on the grounds of legal considerations or unreasonableness, without the possibility to seek compensation for damages.
The article 469A remedy was affirmed in landmark judgments such as Adrian Delia vs The Prime Minister, concerning the concealment of the Egrant Inquiry report, The Police vs Joseph Lebrun, and Porsenna vs The Attorney General, wherein the Constitutional Court reaffirmed that the Attorney General’s discretion is subject to judicial scrutiny before the Civil Courts. Succinctly put, the 2020 amendment did not introduce a remedy, it curtailed an already existing one.
Bill No. 125 is not reform. It is regression. It centralises power within the executive, weakening judicial independence and dismantling the separation of powers in criminal investigations. Should, or indeed when, the executive branch of the State overstep to protect and conceal a crime, no recourse shall remain. The judiciary, ousted. The citizen, silenced. Crimes concealed with impunity.
Under the proposed procedure, a complainant must first file a criminal report with the Police. If six months elapse without action, only then may the complainant petition the Criminal Court to instruct a magistrate to initiate an inquiry. But even this recourse is illusory—the Court’s decision is final, unappealable, and contingent on the complainant presenting admissible evidence at the outset. The legislative intent is unmistakable: the Bill constructs a procedural labyrinth barring individuals from seeking a magisterial inquiry, which is ultimately an independent judicial investigation to collect and preserve evidence.
The raison d’être of magisterial inquiries, as established in the case of Repubblika ta’ Malta vs Jason Calleja, is to uphold the separation of powers in criminal investigations. By forcing complainants to endure six months of inertia at the Police’s discretion, this Bill does the opposite. It subjugates the right to initiate a magisterial inquiry to the will of the executive police.
There is however, another executive heavyweight being given gatekeeping powers over magisterial inquiries - The Attorney General. Should the Police determine that prosecution is unwarranted, the matter is referred to the Attorney General. At this stage, the Attorney General may override the Police’s decision and order further investigation or prosecution. Yet clause 4 of the Bill stipulates that if the Attorney General concurs with the Police’s determination that prosecution is unwarranted, the complainant is left without remedy—no six-month threshold, no right of petition, no recourse to a magisterial inquiry.
The implications are chilling. A complainant must first approach the Police. An institution vulnerable to political sway, where evidence may be ignored, discarded, or buried. The matter moves to the Attorney General, who, in the absence of concrete evidence, may or ought to dismiss it outright. The complainant is hereby denied any effective remedy.
The Prime Minister, in the Bill’s second reading, insisted that judicial review remains an avenue of redress, crediting its introduction to this current administration. Yet this is a hollow claim. The judicial review mechanism proposed is toothless. A complainant must first request the Attorney General to reconsider her decision. If the request for reconsideration is ignored or denied, the complainant has two months to file a full-blown lawsuit against the Attorney General before the Civil Court.
But to what end? Even if the Civil Court rules that the Attorney General acted unlawfully, it cannot order prosecution, direct an investigation, or compel the initiation of a magisterial inquiry. At best, the Court can only issue a declaratory judgment, which is ultimately a legal reprimand that takes years to materialise. Meanwhile, evidence is lost. Wrongs remain unpunished.
Equally misleading is the assertion that the judicial review of the attorney general was introduced recently by this government. While Article 469B, introduced in 2020, formally governs the judicial review of the Attorney General’s decisions, such review was already available under Article 469A of the Code of Organisation and Civil Procedure, an article which was enacted in 1995.
The latter provision provided individuals with a six-month period within which to contest administrative decisions on much broader grounds than those stipulated in the 2020 law. Article 469A allowed individuals six months to challenge the decisions of the Attorney General on grounds of constitutionality and lawfulness, principles of natural justice, abuse of power, improper purposes or irrelevant considerations, with the possibility of damages if the decision is unreasonable or in bad faith. While under the new Article 469B, individuals may only challenge the decisions of the Attorney General on the grounds of legal considerations or unreasonableness, without the possibility to seek compensation for damages.
The article 469A remedy was affirmed in landmark judgments such as Adrian Delia vs The Prime Minister, concerning the concealment of the Egrant Inquiry report, The Police vs Joseph Lebrun, and Porsenna vs The Attorney General, wherein the Constitutional Court reaffirmed that the Attorney General’s discretion is subject to judicial scrutiny before the Civil Courts. Succinctly put, the 2020 amendment did not introduce a remedy, it curtailed an already existing one.
Bill No. 125 is not reform. It is regression. It centralises power within the executive, weakening judicial independence and dismantling the separation of powers in criminal investigations. Should, or indeed when, the executive branch of the State overstep to protect and conceal a crime, no recourse shall remain. The judiciary, ousted. The citizen, silenced. Crimes concealed with impunity.
