On 5 July 2022, I penned an article ‘To resign or not to resign? That is the question?’ (The Malta Independent) where I had sincerely advised the government to appoint an independent judicial inquiry on the workings of the office of the Attorney General to essentially identify what is going wrong there so that the pertinent corrective measures are taken.

Just a few days ago, on 11 July 2022, the Civil Court, First Hall (Constitutional Competence) presided by Mr Justice Ian Spiteri Bailey in the names ‘Il-Pulizija (Spettur Johann J. Fenech) vs. Sebastian Dalli’, delivered a very damning judgment on the Office of the Attorney General whose actions border on maladministration, not to say gross negligence.

In this judgment the judge observed how the office of the Attorney General was abusing of the referral (rinviju) procedure in the Criminal Code without doing nothing from its end, with the inevitable hardship that an accused person awaiting justice has to go through. This, of course, apart from the breach of the right to a fair trial as enshrined in the Constitution and the European Convention Act in so far as the accused was and continues to be denied a speedy determination of the charge levelled against him.

In a nutshell, the facts of the case are that there were several factors that contributed to the delay but the worst culprit was the office of the Attorney General. The criminal proceedings in question were instituted on 3 February 2009 and 13 years later the case has not even been decided by the Court of Magistrates. Indeed, prior to the institution of the constitutional proceedings on 21 January 2021, the criminal proceedings were still at the initial stage, that is, where the Police submits its evidence. It had not even reached the stage where the accused presents his evidence, oral and/or written submissions are made thereupon, and a judgment is delivered, not to mention any possible appeal therefrom.

The case has thus taken thirteen years for the initial stage to be concluded. One asks: when will this case ever be concluded? Eternity might still be a short time for this purpose!

In so far as the Attorney General is concerned, it resulted to the court that the Attorney General had, on ten consecutive times, between 5 December 2018 to 28 February 2020, requested the Police to produce any further evidence that it might have, without indicating what evidence is to be so produced. Ten sittings were held and in each sitting the Police informed the Court (and the Attorney General) that the Police had no further evidence to adduce. Not only so but the Court repeatedly requested the Attorney General to take the appropriate action to conclude the case.

Clearly, in this case, there has been no communication between the Attorney General and the Prosecuting Officer for, should there have been, there would have been no need for the office of the Attorney General to resort to a game of ping-ping – with the office of the Attorney General sending the records of the preliminary investigation to the Court and the Court sending it back to the Attorney General, and all this for ten consecutive times with no progress being registered during any of these sittings. A total waste of time and money from government coffers.

These shortcomings need to be urgently identified now and nipped in the bud. In this case alone, at least ten consecutive mistakes can be counted by the Attorney General. How much more do we have to wait before the whole prosecution system in Malta collapses? Does the government have a hidden agenda to ensure that when, if ever, the Police wake up and take action on renowned corruption cases, all accused with end up scot-free because of some mistake committed by the Police or the office of the Attorney General?

Finally, and here comes the ridiculous part of this judgment, it is the State Advocate who bears no responsibility for the misconduct of the office of the Attorney General, who has to bear the brunt of forking out the court expenses in relation to the constitutional reference!

Kevin Aquilina is Professor of Law at the Faculty of Laws of the University of Malta