Bonello Commission never proposed limiting citizens’ right to request inquiries

A judicial reform commission set up by the Labour government in 2013 never suggested limiting citizens’ rights to request inquiries in its proposal to overhaul magisterial inquests.

The Commission for Holistic Reform in the Justice Sector, better known as the Bonello Commission, had suggested hiving off inquiries from the responsibility of magistrates and handing them to the prosecutor’s office – the Attorney General.

However, the Bonello Commission, headed by former judge Giovanni Bonello, had also suggested that the appointment of the AG be similar to that of judges and magistrates thus guaranteeing complete independence from the government.

The recommendations made by the Bonello Commission more than 11 years ago are pertinent in today’s circumstances when the government is planning to change the manner by which an ordinary citizen can request a magisterial inquiry.

The government has so far not published the proposed Bill but on TVM’s Xtra last week, Attard said the reform has long been coming. He said the Bonello Commission and the Council of Europe’s Venice Commission had also proposed reforming magisterial inquiries. “They both went to the extreme of suggesting removing inquiries from the hands of magistrates,” Attard said.

What he failed to point out was that neither of the two commissions proposed changes to the manner by which ordinary citizens can request a magisterial inquiry.

However, Attard gave the clearest indication yet that one of the changes would require a citizen to first file a police report. Only after the police fail to take action can the citizen request a magisterial inquiry. Other obstacles may also be in the pipeline.

The decision to reform inquiries came in the wake of five separate investigations requested by former MP Jason Azzopardi during the Christmas holidays.

Prime Minister Robert Abela and several Labour Party exponents have accused Azzopardi of abusing the system and using inquiries to carry out political persecution.

On Xtra, Attard insisted the government wants to ensure that the justice system, including magisterial inquiries, be a tool for good and not a weapon of persecution.

However, his reference to the Bonello Commission and its recommendations on magisterial inquiries was unwarranted in the context of the reform being contemplated now.

A new method of appointing the Attorney General

The Bonello Commission, which produced a voluminous report covering a multitude of issues concerning the justice system, had proposed the creation of a general prosecutor’s office. At the time, the prosecutorial function was part of the Attorney General’s office, which also served as the government’s counsel.

The functions of the AG were subsequently split, with a new office – the State Advocate – taking over the functions of state counsel, while the AG retaining the function of prosecutions.

One of the proposals of the Bonello Commission was to remove inquiries from the remit of the judiciary so that they can focus on judicial matters and not investigations. Inquiries would fall under the remit of the AG.

But crucially, the Bonello Commission also sought to guarantee the independence of the prosecutor (the AG) by proposing a new appointment method similar to that proposed for members of the judiciary.

It was on Robert Abela’s watch that the appointment of judges and magistrates was hived off completely from the prime minister’s hands as had been proposed by the Bonello Commission. But the significant reform was only limited to the appointment of members of the judiciary.

As things stand today, the AG is appointed by the President on the advice of the Prime Minister. Although the AG does have security of tenure because they can only be removed by a two-thirds vote in parliament, the current system ensures the person occupying the chief prosecutorial role is of government’s own choosing.

This raises concerns about the independence of the AG, especially in politically-charged cases of alleged corruption. And the concerns are not spurious.

Back in 2016, despite a recommendation from the Financial Intelligence Analysis Unit to seize the computers of audit firm NexiaBT in relation to the Panama Papers scandal, the police failed to act because the AG deemed the proposed action too intrusive.

It was only three years later that a magisterial inquiry kicked off on the initiative of former PN leader Simon Busuttil and MEP David Casa. This inquiry was concluded in December and was passed on to the AG with a recommendation to take criminal action against several individuals and companies, including Keith Schembri, Konrad Mizzi and Yorgen Fenech.