Indisputably Malta’s legal framework is based on the rule of Law. We fully embrace the notion of the separation of powers as enunciated by Political Philosopher Baron de Montesquieu in 1748. This is the model all modern democracies must always thrive to attain. This notwithstanding however, it is laudable that from time to time our legislature would be given the opportunity to revisit our important institutions to further strengthen the concepts of good governance. There will always be means and ways to continue to strengthen our National Institutions. In the light of all this the recent debate in Parliament was commendable.

Having stated this however, it must be emphasized that our ancestors strived hard over the centuries to assert our Democratic State thereby ensuring for future generations transparency, freedom, justice and liberty.

To best appreciate the difficulties our forbearers would have encountered in ascertaining their inherent liberties, it is important to keep in mind that from time in memorial Malta was under the dictates of various colonial masters. Undeniably, in 50 years of independence the Maltese have truly achieved a lot in this regard. 

Tactlessly however, it was unfortunate that all energies from the Opposition’s side were dedicated towards one particular issue. The Opposition used its time to persistently demand the resignation of our Attorney General and Commissioner of Police attributing to them political and even legal accountability for the tragic murder of journalist Daphne Caruana Galizia.

In this article I purport to make an argumentative stand in favour of our Attorney General thereby attempting to address any legal misconceptions that may have arisen. 

It appears that the opposition are holding Peter Grech politically accountable by arguing that in his supposed investigative role he failed to guarantee security and thereby giving vent to a climate of anarchy which eventually contributed to the despicable murder above mentioned. Particularly they argue that as head of the FIAU he should have acted upon any conclusions there in reached.

To rebut these misconceived legal assertions it is necessary to understand the Constitutional Role of the Attorney General.

Interestingly to note this office in contemplated under Chapter VII of the Constitution dealing with the Executive. This could at first proof to be misleading. In truth the Attorney General in Malta assumes a double role. He serves the state as the Primary Advisor to the Prime Minister and his Cabinet by convalidating legal issues. Furthermore, he is the judicial representative of the state, this being the only legal consideration for seeing this office under the above mentioned Chapter in our Constitution. More importantly the holder of this office is vested with the more important quasi-judicial function.

 

The functions of the Attorney General are contemplated under article 91 of our Constitution. From here we see that the Attorney General in line with British tradition is akin to the Chief Magistrate. In the exercise of this role he is answerable to no one. To further enhance his independence our Constitution gives him the same guarantees afforded to our judiciary. If we then view Article 97 of our Supreme Law we will understand that his position is entrenched and can only be removed for proved misbehaviour, infirmity of mind or his inability to fulfil his function by a two thirds majority in Parliament.

From this it transpires that this office carries absolutely no investigative powers what-so-ever. This signifies that he is in no position to initiate ex-officio any investigations or arraign anyone in Court. This argument carries weight even with regards to any supposed report prepared by the FIAU. This report which is confidential and rightly so because of its sensitivity is forwarded to opportune authorities who if the circumstances so dictate will refer it to the investigative authorities, the Executive Police or the Inquiry Magistrate for further investigation and if the case might be for the eventual arraignment of the wrong doers.

In considering this scenario it becomes only too apparent that the unfortunate, hysteric, criticism being levelled on Peter Grech is not founded on a sound legal basis.

I find it all too unjust to use this personality as an escape goat for cheap political aims.

All this does not signify that in Malta investigations are not carried out independently. This is far from the case. Though investigations are carried out by our Commissioner and Executive Police in instances of serious crime the duty Magistrate is informed. The Inquiry then is carried out by an Inquiring Magistrate as happens on Continental Europe. Here again the inquiring Magistrate forming part of the judicial organ of state guarantees absolute independence, transparency and impartiality. The final question to address is weather holders of high public office such as the Commissioner of Police and the Attorney General should be appointed by the legislative organ of state. The answer is simple. Absolutely note. In such a setting, the executive branch of state would be abdicating its primary role, that of governing to the detriment of the very concept of the separation of powers which the opposition seems only too eager to affirm.

 

 

 Jose Herrera is Minister for the Environment, Sustainable Development and Climate Change.