Sections from the Egrant report, including the recommendations, should not be released since this could prejudice ongoing criminal investigations, Professor Kevin Aquilina, the Dean of the Faculty of Laws, tells The Malta Independent on Sunday.

In fact, he adds: “If I were the Attorney General, I would have not passed on the recommendations to the Prime Minister or to the Justice Minister not to prejudice the criminal investigation, more so that the Prime Minister has declared that he wants to publish the report.”

From the Attorney General’s point of view it makes sense not to release these recommendations, Aquilina points out. However, he also notes that these recommendations also appear to have been released to the Prime Minister but not to the Leader of the Opposition.

Aquilina explains that the summary of the report, as issued to the public, is not complete as there are some other parts in it where the magistrate would have indicated certain action that needed to be taken which have not been published.

Giving examples of a person lying under oath, or the submission of falsified documents, Aquilina notes that in the recommendations the magistrate would probably have instructed the police to arrest, investigate and, should there be sufficient evidence, charge the individuals concerned.

Aquilina believes that the report should not have been given to anyone to ensure a level playing field but says that one has to also consider that the Prime Minister is a victim in this case.

The situation does complicate itself further since the report was also issued to the Minister of Justice on the basis that he is the Prime Minister’s advisor, Aquilina admits.

 

Attorney General Peter Grech

How is the Attorney General appointed?

According to the Maltese Constitution, the Attorney General is appointed by the President, acting on the advice of the Prime Minister. In reality, this means that it is the Prime Minister who decides who is to be appointed Attorney General, not the President, who has no say in the matter.

The President is bound by the Prime Minister’s advice and, if not in agreement, would have to resign. Essentially, the Attorney General’s appointment is a political one.

What is the role of the Attorney General?

The Constitution provides that the Attorney General's role is to institute, undertake and discontinue criminal proceedings. In so doing, he must exercise this power according to his personal judgement. The Attorney General is not subject to the direction or control of any person or body, including the Prime Minister, Cabinet or Parliament.

In the case of a criminal proceeding, the Attorney General is completely independent and cannot take orders from anyone, including the Chief Justice.

However, the Attorney General has another function: he is also the chief legal officer of the government. In this sense, the government is his main client.

In this role, the Attorney General advises the government on legal matters but it is up to the government to choose whether to take his advice or not.

In the criminal sphere, he decides and nobody can change his decision except the Courts in terms of law. In the Civil Law sphere, he is simply a lawyer who advises his client even though the client happens to be the government.

Could these two roles cause a conflict of interest?

That he has a conflict of interest because he is playing two roles is more of a perception rather than a reality.

At least, I am not aware of cases where he has had a real, not apparent, conflict of interest even though questions do arise, such as on what grounds did he give a copy of the Egrant Inquiry to the Minister of Justice.

People perceive him to have a conflict of interest because on the one hand he is independent in the criminal field, but on the other he is seen as extremely biased in favour of the government because he is the government’s lawyer.

How can a person be completely independent but also completely biased?

One has to distinguish between reality and perception. This is how Attorney Generals have always functioned since 1964.

I have criticised this perception and one can also see the Bonello Commission report, which had recommended that both functions should no longer be performed by the Attorney General, mainly because of this perception.

In continental Europe, this is surely not the case where the government’s legal advisor is also the Prosecutor General.

In the case of the Egrant report, can there be a conflict of interest since he is the government’s lawyer?

I do not consider the Attorney General to be acting as the government’s lawyer; he is acting as a prosecutor.

If I was in his stead, I would not have given the Egrant report to the minister responsible for justice.

While, perhaps, in the case of the Prime Minister, this may possibly be justified as he was the victim, I still fail to understand why the Justice Minister has been given a copy of the recommendations, more so because the Criminal Code does not mandate such a procedure.

I do not know the facts of the case exactly, that is, in what capacity – if at all, is the justice minister advising the Prime Minister.

The Minister of Justice cannot represent the Prime Minister in his capacity as a lawyer in any legal case that may result, since this would be a conflict of interest.

The facts have not emerged clearly. What I personally would have done is not given the report to anyone but published the résumé for public consumption.

In such cases, are reports usually issued by the Attorney General?

There are cases where reports have been issued by the Attorney General. For example, if there is a traffic accident and the report is required for insurance purposes.

There could also be a victim who wants the report; it does not have to be the Prime Minister and the Attorney General to release the report. However, the problem is that the Attorney General’s discretion is absolute as there are no guidelines which ensure that he acts objectively, reasonably and proportionately.

Too much discretion is not conducive to a proper judicious exercise of public functions.

Since the case is of public interest, is there anything in the law that obliges the release of the report?

No, there is nothing in the law that obliges its release because it is very discretionary. The Attorney General decides, if, when, and what to release.

In this case, the part released is not conclusive because there are other parts following the pages released which have not been published. In these pages, the magistrate would have indicated what action needs to be taken.

If, for example, the magistrate found that someone had lied under oath, he would surely have that person arrested and investigated and, should there be sufficient evidence, charged with perjury. Also, if someone has submitted falsified documents, he would instruct the police to arrest, question and charge with falsification of documents.

If the recommendations are released now, the criminal investigation of the police will be prejudiced. From the Attorney General’s point of view, it makes sense not to release those parts.

However, it appears that these parts have been released to the justice minister but not to the Leader of the Opposition.

If I were the Attorney General, I would have not released the magistrate’s recommendation to anyone because it can prejudice criminal investigations.