The Malta Independent 13 November 2019, Wednesday

Implementing reforms

Owen Bonnici Friday, 14 June 2019, 08:47 Last update: about 6 months ago

This is a Government which is intent on implementing reforms and changes in all sectors, including in the field of Justice.

A lot has been done, but we cannot rest on our laurels.  A lot remains to be done and we need to make sure that we keep the momentum and keep delivering change.

I am proud of our legal system, the traditions it has and the way it has served our country from one generation to the next. It has been the basis of our breathtaking development from a fortress colony into an exciting economy in less than 60 years. We are duty bound to respect our tradition, our legal system and the unique regime which the Maltese people have developed over time.  However, at the same time we are duty bound to bring about change, to make our justice system future proof, to make it robust while at the same time respecting fully the fundamental human rights and the principles of democracy.

ADVERTISEMENT

It is precisely for this reason that Parliament is discussing right now at second reading stage an important bill which will continue implementing reform in the justice sector.  It will provide for the division of the prosecution and State advisory roles of the Attorney General by transferring the latter to a new office to be called the Office of the State Advocate and to bolster the independence of the prosecution by shifting, subject to transitional arrangements, the prosecutorial decision taking from the hands of the Police to the hands of the Attorney General.  As we know the Attorney General enjoys security of tenure and that in itself is a strong step in the right direction towards more independence of the prosecution.

+ + + 

This change has been elusive over the years.  Various administrations tried to separate the roles and functions of the Attorney General but without success.  I understand why this happened because the resistence on the ground towards change is intense and it manifests itself in various forms.

This will be the right time to strike the ball home.  We will succeed in pushing change forward.

+++

Some context:

In December last year immediately after the Venice Commission report was published we positively welcomed their opinion. The reformist agenda of the Venice Commission is aligned with ours.

After all, the opinion was prepared on the invitation of the Government of Malta to the Venice Commission.

The Venice Commission recommendations mainly focus on laws and systems which are long-standing and were ‘inherited’ by this government.  In turn, the recent reforms which this Government has embarked upon were deemed positive and a step in the right direction.

The aim of the Venice Commission’s recommendations is to strengthen the framework of the separation of powers between the government, Parliament, and the Judiciary in Malta; to strengthen the independence and accountability of State institutions; and to implement change in various areas of public administration and the State, including prosecution and the forces of law and order.

Following our immediate positive reaction, in less than one hundred days we announced that the Government will be legislating for a separation of the Attorney General's prosecutorial and advisory roles by the Summer Parliamentary recess and the first reading was moved on Monday 25th March 2019. 

I had also announced that regarding the recommendations relating to judicial appointments and judicial discipline, the Government is in agreement with further reform.  However the required changes can only be implemented through Constitutional amendments, which in turn can only be made with the approval of two-thirds of members of Parliament.  Government embarked on a consultation process with the Parliamentary Opposition with a view to reaching a consensus expediently.

The roadmap included other areas on which further first readings were moved straightaway.

In all, our immediate action on the recommendations represent one third of the changes proposed by the Venice Commission.

The Government is confident that this process will be expeditious and will complement the ongoing reform process to which it is committed, and in furtherance of which it has implemented numerous Constitutional and legal changes since 2013, to strengthen the enforcement of the rule of law and the separation of powers.

+++

The Bill is quite clear. This will continue with the implementations already in place in the Justice sector and will provide for various measures so that the functions of the Attorney General as a public prosecutor and as the State’s legal advisor will be separated and carried out by different officials and by different and independent institutions. This situation goes back to 1936 when the Ordinance regarding the Attorney General was enacted and held in Maltese constitutional law even after Independence till today.

The State Advocate shall be the Chief Legal Advisor to the Government and shall have the judicial representation of the Government in judicial acts and actions where the law does not provide that such representation shall vest in some other person or authority. In giving legal advice the State Advocate shall act in the public interest and shall safeguard the legality of actions of the State. The State Advocate will function through an Independent Agency to that of the Attorney General.

The method for the appointment of State Attorney will be the same as that of the Attorney General, but before making his recommendation to the President on who should be appointed, the Prime Minister will be obliged to give due consideration to the appointed Recommendations Commission which will base its opinion following a public call for applications. The same procedure will be followed when there is a vacancy in the office of Attorney General and for this purpose the Ordinance about the Attorney General will also be amended.

This new method of appointment came about following a recommendation of the Venice Commission itself.

The Attorney General’s remit in the area of prosecution will be increased. The Attorney General will be given new powers which will entail him to demand that the Commissioner of Police investigates any crime; give the Attorney General any information about the investigation of any crime; issue any charge for any crime and to prosecute any crime.  The present system of judicial review, which is commonly referred as the challenge procedure, will remain in place.

Another aim of this bill, apart from the separation of the functions of the Attorney General is to facilitate the separation of the investigative functions from the prosecution functions, which are generally performed by the Police. This will further secure the independence of the prosecution. The aim is that with the eventual increase in human resources, prosecutions will originate from the Attorney General’s office after due transitional measures and full collaboration with the unit being set up purposely within the Police Corps. This unit will play an important role in intensifying the prosecution service.

The draft Bill also is proposing consequential changes in other laws, including the Constitution, to provide an appropriate legal basis and facilitate the transition of the functions of the Attorney General which are to be handed over to the State Attorney.

The Bill also provides for the possibility of transitional measures with the aim that all the changes will be made in an orderly manner and without causing any difficulties in the prosecution and the Government’s legal service that are essential for good governance, public order and also to respect rule of law in general.

+++

These are exciting times ahead for the Justice sector.    This bill is the result of a strong team effort and I am very proud of things mapped out.  It also augurs well for future legislations.

The Opposition, once again, was left alone on the side of the Nays.  They, once again, will be on the wrong side of history.

 

  • don't miss