EXPLAINER | Malta’s Attorney General, in the eye of the storm

Who is the Attorney General?

His name is Peter Grech and he was appointed to the post in September 2010 by then Prime Minister Lawrence Gonzi. He has served in the attorney general’s office since 1983, having been promoted to assistant to the Attorney General in 1994 and Deputy Attorney General in 2005.

Does the Prime Minister appoint the AG?

The AG is a person of the Prime Minister’s choosing. However, formally, it is the President acting on the Prime Minister’s advice who appoints the AG.

Can anybody be appointed?

No. The Constitution lays down parameters that dictate the qualifications a person must satisfy to be appointed AG and these are equivalent to those for the appointment of judges. The Constitution lays down that to be appointed a judge, the individual must have practised as a lawyer in Malta, or served as a magistrate, for not less than 12 years.

What is the role of the Attorney General?

The Attorney General is a constitutional role. The AG has three basic functions: he has the power to institute, undertake and discontinue criminal proceedings; he advises the government on legal matters and represents the interests of the State in judicial proceedings; he also helps draft laws and agreements. The AG also chairs the board of governors of the Financial Intelligence Analysis Unit, a role that landed him at the centre of political controversy.

How is the AG involved in criminal prosecutions? Isn’t this the job of the police?

The AG is not a criminal investigator. It is the police that investigate crime and charge people in court. In ordinary criminal proceedings it is the police that prosecute. However, the police also seek the AG’s advice and in criminal cases of a serious nature, such as murders, it is the AG’s office that leads the prosecution in court.

Does the government tell the AG what to do?

The Constitution protects the AG’s independence by saying that he “shall not be subject to the direction or control of any other person or authority”. However, you will hear differing opinions on whether in practice the AG has always acted independently of the government of the day. Politicians in government always contend they do not interfere in the AG’s work, while those in Opposition claim otherwise.

But isn’t there a contradiction between the AG’s role as criminal prosecutor and his duty to advise the government and act as its lawyer?

Yes, and various legal observers have called for change in this regard. In 2011, MP Franco Debono, then a backbencher of the Nationalist government had presented a private members’ motion on judicial and police reform, which included a “revision and redefinition of powers” entrusted to the AG. Debono had argued, among other things, for an independent prosecution office to do away with the conflicting role played by the AG, but his initiative got stalled in Parliament.

In 2013, the Bonello Commission set up by the Justice Minister to propose wide-ranging reforms, had proposed the creation of a prosecutor general’s office to address the matter. No changes have been made to the AG’s roles and the Opposition has now joined the chorus of criticism on the matter.

The Opposition has asked for Peter Grech’s removal. Why?

The Opposition argues there has been gradual erosion in the rule of law over the past four years with government undermining institutions like the police through the appointment of cronies at their helm. While Grech is not a Labour government appointee, he has faced flak over what the Opposition says is his reluctance to prosecute cases of alleged money laundering by people close to Prime Minister Joseph Muscat. In the wake of Daphne Caruana Galizia’s murder, a key demand of the Opposition has been Grech’s removal or resignation. The AG is accused of being part of the climate of impunity, which the Opposition says led to the journalist’s murder. The resignation demand has also been taken up the Civil Society Network that has organised two mass demonstrations calling for justice to be done with Caruana Galizia.

Can the government fire Grech?

No. The Constitution affords the AG security of tenure and he can only be removed from office if a two-thirds majority in Parliament approves a motion of impeachment.  The reasons for removal are either inability to perform the functions of his office as a result of infirmity or proved misbehaviour. The Opposition has put no such motion forward and even if it does, the government side is unlikely to play ball. Muscat has insisted the AG does not take orders from him.

How can Grech be replaced?

Apart from an impeachment process, the AG can be replaced if he resigns or retires. Retirement is compulsory at age 65.

What has the Opposition accused Grech of wrongdoing?

The PN has insisted that Grech reneged on his duty to prosecute Tourism Minister Konrad Mizzi and the PM’s chief of staff Keith Schembri, among others, on suspicions of money laundering and kickbacks found in reports drawn up by the Financial Intelligence Analysis Unit.

What are the cases?

The FIAU had carried out an audit of Ta’ Xbiex-based Pilatus Bank and flagged suspicious transactions involving various politically exposed persons. The FIAU report had implied that Schembri received kickbacks from Nexia BT owner Brian Tonna from the sale of Maltese citizenship. Schembri and Tonna deny any wrongdoing. Another claim, said to have come from an FIAU report, involves alleged payments by the company operating the LNG storage tanker at Delimara via a Dubai firm to the accounts of two Panama companies set up by Mizzi and Schembri. The pair deny the accusations.

How does Grech feature in all this?

The PN’s principle accusation is directed at the police for failing to act on the FIAU findings but the Opposition subsequently called on Grech to use the powers vested in him by the Prevention of Money Laundering Act to initiate a criminal investigation. However, Grech insisted the law did not empower him to start a criminal investigation and issue criminal charges as the Opposition demanded.

Grech also denied being privy of the investigations carried out by the FIAU, adding the board of governors, which he chaired played no role whatsoever in the unit’s investigations.

What is the PN demanding?

The PN wants Grech to resign or be removed. It also wants his replacement to be chosen on the basis of a two-thirds parliamentary majority, which is not something that is catered for at law. The Opposition believes this method of choosing an AG will ensure the person occupying the post would enjoy the trust of both sides of the House.