Issue link: https://maltatoday.uberflip.com/i/936285
Opinion 27 maltatoday SUNDAY 4 FEBRUARY 2018 hats is common in other Member States, and does not impact in any way on his ability to properly and impartially perform his role. Whilst the Attorney General is both the legal advisor to the Government and the public prosecutor, the Office of the Attorney General is divided into two separate units which perform the two separate functions. Those law yers who work as prosecutors do not give constitutional or civil advice to the Government, and vice versa." Here we have to put all this into a specific context. Part of the reason for the EP's fact-finding mission to Malta was all along a perception – real, fancied, whatever – that this 'dual role' was somehow impeding Malta's justice system from actually operating. Part of the public outcry over the Panama Papers concerned the fact that the AG – who is also government's legal advisor – failed to initiate an investigation, as he is/was empowered to do at law. Now: I won't go into the nitty-gritty concerning everything the mission got wrong about the AG's powers according to our Constitution – but yes, they got that all muddled up, too – for the simple reason that... no proper investigation took place. And the question this raises is: why did no investigation take place, when there were reports clearly indicating that investigations should have taken place? Government's answer is twofold: one, the AG does NOT have the power to initiate an investigation without an investigation order, which in turn can only be granted when there already is an ongoing police investigation; and two: 'The Attorney General is only able to take steps to obtain an investigation order when he 'has reasonable cause to suspect that a person…is guilty of the offence'." The first part sounds like classic 'void loop' to me: the AG can't investigate unless the police are already investigating... so if the police choose not to investigate, there can be no investigation at all. And what, that's our official excuse? All it means to me is that the system is rigged to ensure that certain 'inconvenient' investigations can always be avoided at will. How on earth does that address the concern about the rule of law? As for the second part... well, maybe there's a reason why the AG saw no 'reasonable cause to suspect' guilt in this case. Maybe, if those two roles weren't so intertwined, he might have viewed things differently... But there are more dimensions to this debate than whether the AG's office falls under the direct inf luence of the current government or not (important thought that dimension undeniably is). How about rephrasing the question slightly: is it, in itself, a good idea to have those two offices combined? Let's face it, it's a predicament we simply inherited from the British, and never really questioned since. But wouldn't it make more sense to divide the two roles completely, and have one office dedicated wholly to prosecution? And on the subject of the 'autonomy' of the AG... why do we only ever talk about 'autonomy' from government? There are other arms of the State. The police, for instance. In our system, it is actually the police who prosecute, while the AG provides legal advice and support. I've always seen that as a conf lict of roles myself, long before it became an issue recently. The same police force that gathers the evidence, in any case, will also present that evidence in court. They have control of the entire proceeding, from the moment the original police report is filed, to the moment the judge delivers the final sentence. Where are the checks and balances in between? What I would like to see is an independent Public Prosecution Office, which could also act as an additional buffer zone against systemic abuse. The police think they have enough evidence to proceed? Fine. They submit their evidence to the Prosecution Office for an independent review. Who knows? A second pair of eyes always helps. Maybe the police's case wasn't as solid as they thought... And yet, turning back to the Government's reply... there doesn't seem to be any cognisance, any where at all in that document, that maybe our system does need a shake-up here and there. Maybe there are ways we can improve the administration of justice in this country. But we are not clearly going to improve that system much, by simply digging our heels and insisting that all our critics are always wrong about absolutely everything. (Even when they are very often wrong, but let me not start the whole void-loop business again...) 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