The Ministry for Justice, Culture and Local Government refers to an article on the State Advocate Bill published in a student online law journal by the former Dean of the Faculty of Laws Professor Kevin Aquilina, and quoted extensively by the Leader of the Opposition in his speech in the House of representatives about the Bill on the 12th June 2019.

The Government believes that some points need clarifications. It is first crucial, however, to provide a context.

The Venice Commission provided a very comprehensive opinion on the changes it suggested to be made to the Constitutional structure of our country. In less than 100 days from the issuance of that opinion, the Government published a roadmap on the adoption of the recommendations according to prioritisation and subject matter. A number of legislative processes were immediately kickstarted in Parliament, with the first priority area being the reform in the prosecution system of our country.

The Venice Commission proposal called for a reform in the structure of the office of the Attorney General, subject to adequate transitional measures, in order to allow for a more transparent prosecutorial branch as follows:

1. An office of an independent Director of Public Prosecutions or Prosecutor General or Public Prosecutor should be established in Malta.

2. The office of the independent DPP would be responsible for all public prosecutions (institution, suspension or termination of criminal proceedings, including corruption).

3. The powers of the new DPP should be subject to judicial review, notably as concerns non-prosecution, upon request by the victims.

4. The AG would remain the legal advisor of the Government

5. The Police remain responsible for investigative work.

The Bill currently being debated in Parliament satisfies all five points, while respecting the legal tradition of our country. This is because once the bill becomes law:

1. The office of the Attorney General, will be revamped as an independent Public Prosecutor.

2. The new office of the Attorney General will ultimately be responsible for all public prosecutions.

3. The right of judicial review on non-prosecution upon request by the victims, which already forms part of our criminal justice system, will be retained.

4. A new office of State Advocate � completely distinct from the office of the Attorney general � will the legal advisor of the Government.

5. The Police will remain responsible for investigative work.

Professor Kevin Aquilina drew out some points and legal arguments by way of legitimate criticism of the Bill. Those points and legal arguments were, later on, repeated in Parliament by the Leader of the Opposition as well.

The Government would like to comment on those points as follows:

1. Criticism has been levelled at a particular clause which is intended for the proper implementation of the State Advocate Act in the sense that it gives authority to the Minister of substituting any reference to the Attorney General with a reference to the State Advocate or of adding any reference to the State Advocate to a reference to the Attorney General or vice-versa. The Government believes that such a power (provided for in Article 7(2) of the State Advocate Bill) which is focused on one particular purpose and which does not apply to the Constitution, to laws of a criminal nature and to laws which regulate the conditions of service of the Attorney General or of the State Advocate cannot be described as a breach of the rule of law and the separation of powers. Clauses which entitle the Executive to change a principal law are not unacceptable as long as they are well defined and do not involve an abdication of the legislative functions of Parliament. The clause in article 7(2) of the State Advocate Bill meets such criteria.

2. Criticism has also been levelled at the nomenclature Attorney General for a Public Prosecutor. This is not unique to Malta. Moreover the 1964 Constitution of Malta itself institutes the Attorney General as the Public Prosecutor. The proposed bill builds on our long legal tradition and re-inforces it.

3. Bad faith has been attributed to the government in implementing the Venice Commission’s recommendations on the basis of the fact that the Bill does not address the composition of the Board of Governors of the Financial Intelligence Analysis Unit, the issue of judicial review of decisions of the Attorney General to commence or to discontinue a prosecution, the fact that the Attorney General will not be taking over Magisterial inquests, and the role of the Permanent Commission Against Corruption. The Government reiterates that the purpose of the State Advocate Bill is not that of implementing all Venice Commission proposals at once, but that of addressing the issues listed in the Venice Commission Opinion with regard to the prosecutorial services in Malta. As has already been stated various times, other legislative bills will follow in the coming months. With regard to the proposal of terminating the current system of Magisterial Inquiries � which is broadly seen as being robust and successful – in favour of a new system whereby inquiries are undertaken by the Office of the Attorney General, the Government believes that this merits further debate and reflection.

4. A claim has been made by Professor Aquilina (but not the Venice Commission) that the presence of the Attorney General on the Judicial Appointments Committee and on the Commission for the Administration of Justice is in breach of ‘Strasbourg case law’. Legal advice which the Government has does not support this claim. However, the Government remains open to discuss this particular legal point.

5. A claim has been made that ‘two new Appointments Committees are being proposed for inclusion in the Constitution. There is no such Constitutional amendment proposed. The ad hoc appointment commissions for the future appointments of the State Advocate and the Attorney General are being proposed in the laws regulating those two offices and not in the Constitution. A specific selection process for these offices is completely in line with the opinion of the Venice Commission on the subject.

6. A point is also made about the lack of entrenchment of the proposed new Article 91A of the constitution on the Office of State Advocate. This does not mean that the provision is not binding but that it can be amended by a normal majority in parliament. It should be recalled that various provisions in the Constitution were introduced in this way including those which initially established the Commission for the Administration of Justice and which were entrenched in the Constitution many years later, incidentally by this very same Government.

The Government is intent on improving the rule of law and implementing change.

Source: Government of Malta