The Malta Independent 11 August 2022, Thursday

Too little, too late

Sunday, 31 July 2022, 08:27 Last update: about 11 days ago

Kevin Aquilina

The hushed-up appointment by government of Chief Justice Emeritus Joseph Azzopardi to investigate a single incident that involves the Office of the Attorney General might, at face value, appear to be a good decision in the right direction. Yet, so far, the terms of reference of the inquiry have remained shrouded in secrecy and unpublished. Openness in government operation is not much a cherished value by government that denies that the people have a right to know how important government business is transacted. Thus, one has to go by what one reads in the newspapers which is, indeed, not much, to try and establish government’s reaction to the situation at the Office of the Attorney General.

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This, undoubtedly, is of course a very serious inquiry that strikes at the very heart of the state: the proper flexing of its coercive muscles. Probably it is the first inquiry that investigates none other than the Office of the Attorney General. Who would have ever imagined that this would happen? It comes therefore as a shock to the unity of the state, even though, probably, it might have been anticipated bearing in mind the writing on the wall that was pointing in this direction.

Nonetheless, the inquiry is a piecemeal stop-gap measure, a perfunctory inquiry, perhaps to show the public that some sort of action is being taken by government, rather than to actually discover the truth in all its colours and flavours. When unpacked, the impression one gets is that this inquiry will end up to be much of a futile exercise from the perspective of good governance and will not provide adequate answers to the ongoing recurring maladministration at the Attorney General’s Office. Indeed, the inquiry appears to be doomed right from its inception from the point of view of good governance.

Possibly, the problems at the Office of the Attorney General that are being brought to light in court proceedings and in the local press are not ones that can necessarily be attributable solely to one individual (though, of course, it can be so as one cannot exclude this a priori in the absence of a fully-fledged independent judicial inquiry into the workings of the whole Office). This is because the problems appear at face value to be systemic and this is what the terms of reference of the board of inquiry as we know them so far in the press (not through a proper official Department of Information press release) fail to address.

A systemic inquiry does not exclude that these problems can be individually attributable because of: (a) bad leadership of the Attorney General personally; (b) single (or multiple) decisions taken by the Attorney General personally that are completely wrong; or (c) the Attorney General personally being incapable of keeping a proper watch out on her employees to ensure that mistakes are not committed by them on behalf of the Office and, should they have happened, instituting appropriate disciplinary proceedings. However, it could also be that the problem is systemic or even both individual and systemic.

By establishing a board of inquiry to address mistakes committed in a singular case will only address the individual case not the systemic inefficiencies; it is impossible to generalise the inquiry’s conclusions to all maladministration at the Office of the Attorney General that can have several causes other than those to be identified in the inquiry’s report.

By resorting to an inquiry on an ad hoc basis, it means that each and every time some sort of mistake is committed by the Office of the Attorney General – and, unfortunately, these appear to be on the increase lately – government will have to appoint an inquiry for each and every single case. This will prove to be entirely demotivating to the staff at this Office to have to go through successive inquiries. In the long run this will neither be cost effective, nor be conducive to raise morale or to undercovering the real problems.

What needs to be established, therefore, is a more holistic and all-embracing inquiry that interrogates the systemic aspect of the Attorney General’s Office that would of course include individual cases. Whilst the ongoing inquiry is investigating more the function of the Office of the Attorney General in relation to one single case, it will fail to dig deeper in order to identify the real problems at that Office.

In the instant case, it can identify (a) that the Attorney General or one of her employees made a mistake; (b) whether the mistake was genuine, attributable to a typographical mistake (where the wrong provision of the Criminal Code was typed in the appropriate charge sheet communicated to the court on the basis of which the latter had to decide the case); (c) whether it could have been a case of simple lack of due knowledge of the difference between one provision of the Criminal Code or another; or (d) whether it could have been a deliberate attempt to ensure that the defendants are totally exculpated according to law.

But what about other mistakes committed by the Office of the Attorney General? Will the justice minister retain in his employ a retired Chief Justice to investigate each and every allegation of a mistake that the Office of the Attorney General has been or will be imputed with from now till the end of the legislature?

Clearly, the currently board of inquiry has too narrow terms of reference. It might, perhaps, solve one query but in the long run does not address the root cause: it simply misses the forest for the trees and ends up in loss of time, energy, money, and effort that could have been well spent better had the government had more foresight and thought a little bit outside of the box.

I am not after witch hunts but only after establishing the truth in the interests of the proper administration of justice so as to ensure that we have a proper and fully functioning office of the Attorney General. That is what every Maltese of good will should want. Concretely, this means that the Board of Inquiry’s membership should be extended to three members, the two new retired judiciary should be specialists in Criminal Law and Procedure, and the inquiry’s terms of reference widened to encompass the entire workings of the Office of the Attorney General, not one isolated case, here and there. It would only be at a subsequent stage that one is to decide upon removal or disciplinary proceedings of the person/s involved, if any.

Now is the time for government to take the bull by the horns; otherwise, maladministration at the Attorney General’s Office will continue to haunt government till the end (if not beyond as well) of the legislature.

 

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

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