Indiscretion is not the opposite of discretion

Under the previous police commissioner, accusing citizens with the highest charge possible was the order of the day. Indiscretion became the hallmark of discretion!

John Rizzo (right) with former prime minister Lawrence Gonzi
John Rizzo (right) with former prime minister Lawrence Gonzi

The Opposition's decision to walk out of parliament last Tuesday certainly made the news.

For me such a walkout is simply an emphatic way that the opposition protests against what it perceives to be unacceptable treatment by the government of the day, more so if there is a hint of disdain for democratic principles. It is neither the end of the world, nor something that should be taken lightly.

Perhaps I am immune to the wonder of it all, because in my 20 years as an MP, I saw enough opposition walkouts to last me a lifetime. In opposition during the Mintoff and KMB governments of 1976-1987, I participated in a number of opposition walkouts. In government between 1987 and 1996, I then saw the Labour opposition doing the same thing a number of times.

For me, Simon Busuttil's first walkout decision was not some earthshaking development in our democracy. The people's attention has been drawn to a particular situation. It is for the people to judge how serious this situation is and whether the extreme action of all opposition members walking out of the House of Representatives was warranted or justified in the circumstances.

The incident developed after the Leader of the Opposition passed some comments to which the Prime Minister objected on the grounds that these were tantamount to a serious accusation against him - presumably as the head of government - and in parliament it is incumbent on members making or implying allegations to substantiate these allegations... or else apologise and retract them. The Speaker's ruling that led to the walkout did not break any new ground and simply means that in the circumstances there is a possible basis, prima facie, for a breach of privilege - and not that the leader of the opposition actually committed a breach of privilege. Alas, these nuances are only appreciated by aficionados of parliamentary procedure and not by the ordinary man in the street.

Simon Busuttil made a distinction between what he termed to be a "political assessment" and an unproved allegation. It reminded me of Alfred Sant - also as leader of the opposition - saying he was morally convinced that a particular decision was the result of corruption. Meaning his was a political assessment that he could not substantiate.

Yet the facts that led to Busuttil's political assessment are more interesting than the incident itself. Briefly, there was a contrasting attitude to the John Dalli case by two different police commissioners. The former police commissioner felt that there was a prima facie (that phrase again?) case against the former European commissioner to the extent that a formal charge in court was indicated. The current Police Commissioner feels that there was no such thing and that the charge against John Dalli would have been useless, as it could have only led to an acquittal. Both claim that they were comforted by the advice of the Attorney General.

The fact is that the former police commissioner was unceremoniously booted out by the current Labour administration in its early days and replaced by another person in what is seen to be a political move to ensure that the police commissioner is someone who regards the current Labour administration more favourably.

This understatement of mine could be blown up to an even greater, worrying scenario that would then influence the opposition to speculate about developments that might not have actually taken place in the very crude manner that the opposition assumes. This is where the political assessment problem comes into play.

The current system of doing things - with which I do not agree - is that it is the commissioner of police who solely bears the responsibility of charging citizens with crimes. And this decision is subject to his absolute discretion, and nobody else's. If and when he seeks legal advice from the Attorney General, this is not to check whether a charge is justified in the particular circumstances of the case; and the Attorney General never advises the commissioner whether to proceed with charging a citizen and what the charge should be. It is only in the case of serious crimes that the legal procedure indicates a compilation stage before the actual trial that the Attorney General - after the compilation of evidence made before a Magistrate - takes the decision on whether to continue with the charge and what the charge should be.

The idea that the Attorney General gave conflicting advice to two different commissioners of police is a non-starter and there could never have been such a thing. Two different assessments of a case - whether John Dalli is involved or not - leading to different conclusions by two different persons using their discretion does not necessarily imply foul play or political interference. The political implications in the John Dalli case are such that they could taint one's political assessment; but at the end of the day an assessment is an assessment, which does not rest on definite proof. Moreover, it is normal for discretion to be exercised differently by two different persons, who do not arrive at the same conclusion. A different leader of the opposition, for argument's sake, applying his discretion could arrive at a different conclusion as to whether the issue should be taken up as a causus belli to the extent that a parliamentary walkout is justified.

Away from the nitty-gritty of political assessments, what is interesting is how this incident is a direct result of how people are accused of crimes in our system and in particular of the roles of the commissioner of police and the Attorney General.

It is no secret that under the previous police commissioner, the police were directed to err on the side of caution. The theory was that the citizen suspected of a crime should be charged with the maximum charge possible, and it is the courts that then decide the level of crime for which he or she is guilty: accusing citizens with the highest charge possible was the order of the day. Indiscretion became the hallmark of discretion!

This policy covers the ass of the police force in that it can never be accused of being lenient with alleged criminals, but it has more negative effects than positive ones. First of all, it is patently unfair for one who has obviously committed a relatively minor crime to be accused of a crime of a higher degree just so that nobody suspects the police are 'helping' him. Secondly, a person accused in this manner could find serious legal problems, if he or she was to admit to the lesser crime, and therefore the system deters the accused from making a guilty plea. Thirdly, all this capriciously involves extra and unnecessary costs in the administration of justice.

In a number of contributions to the press, I have insisted that the prosecution of persons charged with crimes should no longer remain a police responsibility and a set-up akin to the one prevalent in other European countries should be introduced. In the UK the responsibility of prosecution was removed from the police force when the Crown Prosecution Service was set up following a notorious case in which innocent persons were framed by the police. In most, if not all, European countries, the police investigate crimes but do not decide whom to charge and prosecute in court.

This is what politicians should be talking about - rather than using their discretion to make a meal of circumstances wherein different people use their discretion and arrive at different conclusions.

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