While half of the country is calling for the Attorney General’s head to roll, and the other half echoes the PM in saying that there is no basis for Peter Grech to step down, many are overlooking the fact that the main problem with the AG’s office is the way it is set up.
In its current form, the office will always be marred by a huge conflict of interest in cases of suspected wrongdoing by government officials, irrespective of whether the PL or the PN is in government.
The AG, appointed by the President on the advice of the Prime Minister, acts both as a lawyer to the government, advising it on legal matters and representing it in court, and also as the public prosecutor.
The law grants the AG the power to “institute, undertake or discontinue” criminal proceedings against individuals or groups. In fact, certain prosecutions initiated by the Police require the previous consent of the Attorney General.
Until the Panama Papers scandal broke there was no issue with the set-up of the AG’s office. But that same set-up came under heavy scrutiny when the AG’s office was expected to, and failed, to initiate proceedings against people who are high up in government.
Like the police commissioner, the AG was handed damning FIAU reports that found that there was reasonable suspicion of money laundering by top government officials, yet no proceedings were instituted or undertaken.
People rightfully expected that just as the AG’s office initiates proceedings against drug dealers and murderers, it should also act in the face of this apparent wrongdoing by members of the political class.
But in the eyes of the people if failed to do so for the simple reason that your lawyer cannot also be your prosecutor.
Civil Society and the Opposition are not only calling for the resignation of the police commissioner and attorney general but also for a constitutional reform which would see these roles filled by a two-thirds majority in the future. At present the AG can only be removed by a two-thirds majority. On the other hand, AGs are appointed by the President, on the advice of the Prime Minister.
AG’s can be removed only by a parliamentary resolution, backed by two thirds of MPs, on the ground of proved inability to perform the functions of his office (whether arising from infirmity of body or mind or any other cause) or proved misbehaviour.
Naturally, the government and the Opposition will never agree on this and no two thirds-majority will be garnered to impeach the AG. As such it seems that the demands being made by CSN and the PN will never be acceded to under this administration.
In the face of this impossible hurdle, the focus should be on reforming the set-up of the AG’s office – a proposal was backed by the president of the Chamber of Advocates, George Hyzler, when interviewed on INDEPTH.
The constitution says the AG “shall not be subject to the direction or control of any other person or authority” during the course of criminal proceedings.
But in the case where the suspects are politicians, and especially in cases, like the Panama Papers, where there was a complete lack of action against the suspects, people can never believe that the AGs office is not under some form of pressure from the government.
That is exactly why the two different roles of the AG have to be split. There needs to be a Public Prosecutor’s Office that would be independent of the government and of the AG.
The Public Prosecutor should be appointed by a two-thirds majority, ensuring that only individuals with the highest level of integrity, who are beyond reproach and have no conflict of interest, make the cut – individuals who would have no problem with prosecuting members of the political class when the need arises.