Prime Minister Robert Abela’s justifications for refusing to initiate a public inquiry into the death of Jean Paul Sofia echo almost word for word those of his predecessor, disgraced former Prime Minister Joseph Muscat, who was reluctant to establish a similar inquiry into the assassination of journalist Daphne Caruana Galizia.

Sofia died in a building collapse last December. He was working in a timber factory constructed illegally on government property by Maltese developers with a criminal past and connections to the Lands Authority. Sofia was 20 years old.

NGOs, public figures, and the opposition have joined the parents’ call for a public inquiry, and on 7 March, the opposition tabled a parliamentary motion for a public inquiry to be held.

 The political/partisan trope

Replying on Monday to questions by the press about the calls of Sofia’s family for a public inquiry, Abela said that while he understands the family’s hurt, “I am angry at the Nationalist Party’s attempt to capitalise on the sorrow of these two parents and try to turn such a sensitive matter into a political issue.”

Joseph Muscat tried using a similar argument in connection with the public inquiry into the circumstances leading to the assassination of Daphne Caruana Galizia. The inquiry concluded that the state was responsible for her death and recommended wide-ranging reforms that the government continues to resist.

In December 2020, during his testimony in front of the board of inquiry, Joseph Muscat attempted to belittle the public inquiry by claiming it had “deteriorated into a political exercise”, implying that the board was somehow acting in a partisan manner, taking sides in some way or other. This led the three judges on the inquiry board to expressly reject the insidious narrative levelled at them.

The magisterial inquiry argument

Despite multiple calls, Abela has dismissed the request for a public inquiry into the death of Jean Paul Sofia, insisting that the ongoing magisterial inquiry should be allowed to conclude.

During a parliamentary debate in February, Abela stated that “If we really want justice, these institutions need to be allowed to work in serenity.” In early March, while answering questions about the Cabinet’s approval of the licensing framework, the prime minister also said, “a public inquiry hinders and does not help achieve justice”.

Abela also dismissed calls for a public inquiry by Miriam Pace’s family using the same justification.

Muscat used the same argument as Abela to stall the launch of the Daphne Caruana Galizia public inquiry, saying that it could affect the outcome of ongoing judicial proceedings and that such an inquiry would only be considered after ongoing police and magisterial investigations were concluded.

“I will not be the one responsible for a public inquiry destroying the case against the three accused,” Muscat had said in June 2019 after a resolution was reached by the Council of Europe calling for an inquiry within three months.

This argument by both Muscat and Abela is deliberately misleading.

Inquiries and investigations

Legal experts consulted by The Shift explained that the primary function of a magisterial inquiry under the Criminal Code – also known as an “in genere” inquiry – is to secure the material traces (which are to be described in detail) of a possible offence. However, if during such an inquiry, the magistrate becomes aware that a person may have been responsible for the commission of an offence, the magistrate can order the arrest of that person.

It is not intended to investigate administrative failures by regulatory bodies or other institutions, nor is its primary function to determine who, if anyone, is criminally responsible for a possible or hypothetical criminal offence.

When accidents bear all the hallmarks of criminal negligence, it is the police, not the inquiring magistrate, who have the primary duty to investigate actively and, in most cases, to produce enough evidence to charge someone. In many cases, they do this long before the magistrate has finished the inquiry.

An independent inquiry under the Inquiries Act is appointed by the prime minister or a minister to look into all other aspects of any particular issue or incident and generally to make recommendations so that something does not repeat itself with tragic or other consequences.

The purpose of such an independent inquiry could (and generally would) include an investigation into the conduct of public officers and the conduct or management of any government department, among other things. What determines whether that independent inquiry is public (heard in the open) or not depends on the inquiry’s terms of reference.

Grieving families left fighting for justice

In August 2021, during an interview with the Times of Malta, Joseph Muscat said he understood the Caruana Galizia family’s pain. On Monday, Abela said that “he understands the family’s hurt”. Abela and Muscat understand nothing of the sort.

Uttering these trite statements while denying a grieving family’s request for a process that could secure their legitimate interest in bringing about justice and change, is a clear example of our government choosing political expediency over honouring its social contract with its citizens.

In very broad terms, a social contract is an explicit or implicit agreement between the people and their government about what each side provides to the other. Implicit terms of a social contract can be difficult to codify, such as social mores, for example. In many cases, though, the agreements are affected by constitutions and laws.

Laws such as the Inquiries Act, which expressly authorises the prime minister to set up an independent inquiry. As a signatory to the European Convention on Human Rights, Malta also has a positive obligation to protect all the rights mentioned in the Convention, including the right to life.

Article 2 of the European Convention on Human Rights states: “Everyone’s right to life shall be protected by law”. Nobody, including the government, can try to end a person’s life. It also means the government should take appropriate measures to safeguard life not only by making the appropriate laws to punish those who kill but also by taking all the necessary and reasonable steps to protect individuals if their life is at risk.

The scope of positive obligations of the State under Article 2 is broad, and there is an abundance of case law that covers many contexts, such as healthcare, dangerous activities, construction sites and road safety, among others.

Moreover, if a family member dies in circumstances that suggest the involvement of the State (directly or through its official or unofficial agents), the victim’s family have the right to be kept fully informed of the investigation into that death to the extent necessary to safeguard their legitimate interest.

A right that Jean Paul Sofia’s family is currently being denied.