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MT 19 October 2014

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maltatoday, Sunday, 19 OctOber 2014 13 Coming back to the AG, Giglio questions why the government's le- gal advisor has now doubled up also as a consultant to the police. "The AG is a public prosecutor, strictly speaking, only in the crimi- nal court: only in cases where the maximum penalty is 10 years or more. That is where he becomes a prosecutor. However, today the AG is consulted by the police before they arraign someone in any court. Does it make sense? Was this originally intended to be his role? This is the same AG who, throughout criminal proceedings, can opt to withdraw a charge at any stage. Would he do this, if he had already been consulted on the arraignment?" Giglio answers his own question. "I don't think the AG should be ad- vising the police. There should be a different unit altogether: a prosecu- tion unit, which is separate from the office of the AG… Another institutional problem concerns the Commission for the Administration of Justice, whose re- mit is to regulate the legal profession from lawyer to judge. "The Com- mission does have powers vis-à-vis lawyers. It can make recommen- dations leading to a warrant being withdrawn, for instance. But in the case of judges, it can only say that, prima facie, there was a case of mis- conduct. Then the issue is referred to parliament, and an impeachment process begins. Which requires two- thirds approval by members of the House…" Recent examples of this process have illustrated just how ineffective it is in practice. Past attempts to im- peach judges have been thwarted, ei- ther because the two-thirds majority did not materialise, or because pro- ceedings were dragged out so long that the judges concerned reached retirement age unimpeached. Again, however, this points to the same overall pattern. We can all see where the problem lies, yet it proves impossible to resolve for political reasons. To in any way change the system governing appointment or removal of judges, the Constitution would have to be amended. This par- ticular section also requires a two- thirds majority – so the same snag that rendered the CAJ toothless, also renders parliament unable to remove it. But it is not the case with the other anomalies we talked about. Changes to the set-up of the Police Board or the office of the Attorney General can be effected through simple legis- lative amendments. So why is this so difficult to achieve in practice? What is hindering the process of reform? "I think perhaps the fear of some- thing new. The fear of an overhaul. Sometimes members of the legal profession tend to be conservative. They tend to resist change…" As evidenced by his campaign to challenge the AG's discretionary powers, Giglio seems keen to force this change upon a reluctant political establishment. Has this got anything to do with his more recent decision to accept an appointment to chair a policy forum advising the Nationalist Party on justice and home affairs? "Yes, it was one of the considera- tions." Reason I asked is because nearly all the aforementioned problems had in fact accumulated over 25 years with the PN almost uninterruptedly in power. This in turn means that Giglio will now be advising the very people who either created this mess in the first place, or who perpetuated it. And it is a politically sensitive ar- ea, too. Justice issues formed part of the campaign that resulted in a land- slide defeat in March 2013. Labour's promise of a justice reform may not have been the deciding factor in the result… but it did reflect widespread discontent over how this area had been handled by past Nationalist ad- ministrations. So what is Giglio going to tell them? What does the party need to do to ensure that its policies on justice are credible and effective? "What will I tell them? I'm going to be frank. For yes, it is true. The PN was in power for 25 years, and did nothing about it. But that is why the PN has to look forward. I think it needs to do four things. To look at the policies of the past, and see which ones are still relevant today; two, to open itself and consult with all the stakeholders; three, to renew those policies and give them a vision for the future; and four, to have the courage to implement those poli- cies." Naturally it will be the people who form part of the PN's next electoral team who will have to implement the same policies. This raises a rather in- evitable question. Will Giglio himself be one of them? Was his acceptance to chair this policy advisory board, also the prelude to his own career in politics? If so, he would be in line with a long-standing tradition of defence lawyers-turned-justice min- isters, including the late Guido de Marco and the incumbent minister Manwel Mallia… "I do not exclude anything. I take everything step by step, day by day. For the time being, this is the task that has been assigned to me. Yes, it obviously has political connota- tions. I will carry it out to the best of my abilities. Then we'll take it from there…" Interview criminal lawyer JOSePH GIGLIO believes the time has come for serious reform: both of the justice system, and of the Pn he will now be advising on home affairs on trial

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