Separation of powers is long overdue

Given the events of the past three years alone – where the AG’s role has been repeatedly called into question – it is surprising that it even had to take an urgent demand by the Council of Europe to finally address this issue

Justice Minister Owen Bonnici’s announcement that a Bill will be tabled in parliament on Monday - looking to separate the powers of the Attorney General, among other changes – marks the first serious step to addressing shortcoming identified by the Council of Europe’s Venice Commission report late last year.

On its visit in November 2018, the Venice Commission found a total lack of a system of checks and balances to regulate the Prime Minister’s powers in Malta is missing. The Commission, an advisory body of the Council, said that the power of the Prime Minister “widely overshadows” that of other government bodies, including the President, Parliament, the cabinet, the judiciary and the ombudsman.

The experts also singled out the “double role” of the AG as government advisor and prosecutor, calling it “problematic”.

Taking into account the Prime Minister’s powers, notably the influence on judicial appointments which comes with the role, “crucial checks and balances are missing”, the experts added. “This problem is accentuated by the weakness of civil society and the independent media,” they underlined.

These are all serious shortcomings in any democracy; and many have been highlighted long before this report. 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.

Nonetheless Prime Minister Joseph Muscat’s response to the Venice report was to announce that the recommendations would all be taken on board. Bonnici’s announcement this week suggests that he meant business… even if the proposed bill only appears to tackle some of the raised issues (there is, for instance, no mention of curtailing any of the Prime Minister’s other executive powers).

It is perhaps understandable that the role of the Attorney General would be prioritized. Under the present system, 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 the present incumbent at the centre of political controversy.

Political controversy also underpins all those other roles. The role of chief prosecutor clearly places the AG at odds with his other function of serving as government’s legal advisor. What happens when criminal investigations are carried out – or, more pointedly,not carried out – into government figures or activity?

Given the events of the past three years alone – where the AG’s role has been repeatedly called into question – it is surprising that it even had to take an urgent demand by the Council of Europe to finally address this issue.

There were even calls for current AG Peter Grech’s resignation, on the basis that he allegedly 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.

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 the sale of Maltese citizenship. Schembri and Tonna deny any wrongdoing.

The veracity of this claim is not, in itself, the issue here; it is rather that no criminal action was taken at all, at a time when the man responsible for prosecution was also the government’s legal counsel.

Moreover, ambiguities exist concerning the powers of the AG. When the Opposition called on Grech to use the powers vested in him by the Prevention of Money Laundering Act to initiate a criminal investigation, Grech insisted the law did not empower him to start a criminal investigation and issue criminal charges.

All the same, one cannot overlook that these issues have existed for years, and that no serious attempt was ever made, by any former administration, to introduce the necessary checks and balances. From this perspective alone, Bonnici deserves credit for taking the bull by the horns.

Moreover, he also said cabinet had also given him a mandate to start a legislative process through which amendments will be made to five other areas that were the subject of recommendations by the Venice Commission including, the Ombudsman, positions of trust, permanent secretaries, independent commissions and the police.

Drafts of the Bills would be published in the coming weeks, with the government looking to have them approved by the end of the year.

One can only hope that, this once, common sense prevails over political expediency.  

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