For the critics of the incumbent Attorney General, the question is whether she should resign or be removed by the House of Representatives, if she fails to take the decisive step in her career and opt for early retirement.
Yet, for one, I do not subscribe to such a view.
Unless the Attorney General decides to resign out of her own volition if her conscience so dictates, the matter should not be resolved at this premature stage by way of a government or opposition motion to seek her removal from office as, although that might be a populist move that will undoubtedly appease her critics, that is neither in the interest of the rule of law nor of the proper administration of justice. The issue is larger than apportioning responsibility and/or punishment on one or more particular persons.
Before deciding to institute removal proceedings in relation to the Attorney General, a proper impartial judicial inquiry should be carried out. That is the spirit of the Constitution. Removal proceedings, should these be required, come at a later stage, preferably also after the current removal system is changed.
The Prime Minister, following the concurrence of Cabinet and with the approval of the Leader of the Opposition, should appoint a board of inquiry under the Inquiries Act to investigating the functioning, running, output, and performance of the Attorney General and her office.
The Board should be composed of retired judges who have presided and/or sat in the courts of justice of criminal jurisdiction and/or of former Attorney Generals. This will ensure that the inquiry is conducted impartially for the people chosen are not subject to external influence and would also be conversant with the duties of Attorney General. There should be no members of the board who do not satisfy this essential criterion as the purpose is not to have three government stooges who perform the duties of scribes and write in their report whatever the Prime Minister or his justice minister dictates to them. This is such a fundamental matter to the good governance of the state that it cannot admit the board’s composition and perception thereof being tainted with partisan bias.
Furthermore, the Opposition should declare publicly that it has full trust in the independent members to be appointed by the Prime Minister if they satisfy the above criterion. For the inquiry to be successful, the Opposition must also be brought on board.
Bearing in mind that during the conduct of the inquiry, the Board might become privy to confidential and/or secret information, the inquiry should not be a public one but should be held behind closed doors. Once there will be bipartisan approval of the board members and once these are drawn from former judiciary and/or Attorney Generals, I see no reason to doubt their integrity and of how they will handle the inquiry proceedings.
The Board should be given ample time to conduct its task and not the standard two-month period which end up impossible to comply with.
In addition, the Board of Inquiry Conclusions should be published by the Board itself through the Department of Information on the same day that the inquiry report is handed to the Prime Minister. Should, in their absolute discretion, the Board members think that other parts (whether redacted or otherwise) of the inquiry should be published in so far as they do not run counter to the public interest and/or to the proper administration of justice, they should be free to pursue unhindered that course of action.
The inquiry should not restrict itself into investigating the performance of the Attorney General or of investigating one particular court case that has caught the attention of a Police Union, a political party, a civil society organization, or any other person. It should investigate the whole workings of the Attorney General’s Office. This is an administrative inquiry and its purpose is neither to find criminal guilt (voluntary or involuntary) or to determine civil liability and propose the payment of any form of compensation by way of damages.
The inquiry will look at the functioning of the Attorney General’s Office in so far as the structure is concerned – such as the resources (human, financial, spatial, etc.) are concerned; the relationship of that Office with other government institutions (notably the courts of criminal jurisdiction, inquiring magistrates, the Police, the Security Service, the FIAU, the State Advocate, etc.); the method of appointment, discipline, and removal of the Attorney General and her staff where it should be seriously enquired whether all these procedures, at least in relation to the Attorney General and the Deputy Attorney General, should follow in the same footsteps of the 2020 constitutional amendments to the judicial branch of the state; to revisit the recommendations of the 30 November 2013 Bonello Commission Report in relation to the office of Prosecutor General, which recommendations, unfortunately, have been left unimplemented by successive Labour justice ministers; and to study what continuous training is currently afforded to the Attorney General and her staff, and how it can be improved even, if need be, by teaming up with the Judicial Studies Committee.
Of course, the Board has to establish whether impediments in a proper functioning of the Attorney General’s Office are structural or imputable to one or more officers, whether within that Office or outside. It also has to be established whether mistakes committed in the past are attributable to work pressure, lack of staff, untrained personnel, negligence, lack of communication between staff in that Office or with other government agencies, typographical errors, or any other causes that the Board may identify.
It is only when one has a true picture of the above can one start pointing his/her fingers at a particular institution/s or person/s for wrongdoing. If removal from office or disciplinary proceedings might need to be instituted, then it is also imperative that whoever is accused of an infringement, is afforded a fair trial. As things stand today, with the Attorney General (and the State Advocate) being removed from office by the House of Representatives (not as in the case of the judiciary who are removed – as it should be – by the Commission for the Administration of Justice or the Constitutional Court on appeal) then no justice will be meted out to the Attorney General if she is brought before the House of Representatives that does not conduct its proceedings judicially (with proper safeguards to the rule of law) but politically with no respect to human rights of accused persons before the House and where members vote according to the whip’s diktat. Removal would end up a farce and will tarnish Malta’s international reputation that has already been repeatedly dented by successive governments.
Kevin Aquilina is Professor of Law at the Faculty of Laws of the University of Malta