Look at this Facebook post by Jason Azzopardi this morning.
It’s another situation of a magisterial inquiry finding that people have a case to answer but, perhaps because of the serious political repercussions of prosecuting the case, the Attorney General, Victoria Buttigieg, has done nothing about.
In theory the process of conducting and filing an inquiry report is secret. It’s meant to be that way because it’s too early to tip off suspects. When the Attorney General commences prosecution, the right of the accused to have access to the evidence against them kicks in. Until they are formally designated as suspects, they shouldn’t know their case is being considered. Once a magisterial inquiry identifies them and the Attorney General issues charges, suspicion in someone is not kept from them anymore. It’s not a secret for ever.
But if the Attorney General throws the case in the filing cabinet and leaves it there the secret is never unveiled. Sometimes, such as in this case, there are leaks. Jason Azzopardi found out somehow. And we can have a debate how he found out and if he should have.
I will say that the state should have the power of secrecy in a situation like this. Inquiries should be sealed until charges are issued. I can see why that’s desirable. But I will also say that if secrecy is being used against the public interest, to protect people of power from justice rather than to serve justice blindly and equally, then it is a duty to remove the veil of secrecy.
It’s clear that we have a political and an institutional problem here. The political problem is that Victoria Buttigieg is beholden to the party in government, and she will not do her job if her job embarrasses her party. The institutional problem is that what Victoria Buttigieg is doing is possible at all.
We need a process that imposes a timeframe for a decision after a magistrate directs the commencement of prosecution on whether prosecution is to commence. And we need a process for every decision the Attorney General takes to over-rule a magistrate’s direction that prosecutions should start. It can’t be that to find out about such decision leaks are necessary.
I would be prepared to accept that secrecy is retained if some safeguard of review is introduced.
A decision by the Attorney General to over-ride the conclusion of a magisterial inquiry could, for example, be subjected to automatic judicial review even, if necessary, behind closed doors. Or a magistrate’s directive to commence prosecution is subjected to a review by a grand jury that will decide on the issue of an indictment based on prima facie evidence presented by that magistrate. Or allow the magistrate to prosecute the case themselves if the Attorney General chooses not to. Or anything else I haven’t thought of because, frankly, I’m by no means an expert.
It’s just that the present system is simply not working. We have relied on generations of conscientious Attorneys General to ensure justice is done. There can be no doubt we’re idiots if we continue to live in hope.
