Justice Ministry responds to criticism of State Advocate Bill

The government has responded to a number of points raised by Kevin Aquilina in a paper published this week in which he accused it of acting in bad faith with regard to the Venice Commission's report on Malta

The Justice Ministry has pushed back against accusations made by Kevin Aquilina, the former dean of the Faculty of Laws at the University of Malta, for his harsh criticism of the proposed State Advocate Act. 

The bill has been described as a “parody” of a report about Maltese institutions compiled by the Venice Commission, which was published earlier this year.

However, reacting to Aquilina’s remarks, the government pointed out that the bill represented “the first priority area being the reform in the [country’s] prosecution system”.

“The Venice Commission proposal called for a reform in the structure of the office of the Attorney General, subject to adequate transitional measures in order to allow for a more transparent prosecutorial branch,” argued the government.

It added that “the Bill currently being debated in parliament satisfies all five points [raised by the commission] while respecting the [country’s] legal tradition.

Bill a parody of Venice Commission report

In the paper, published in the law students’ association online journal, Aquilina described the bill currently being debated in parliament as a “parody” of the Venice Commission’s report.

The article was quoted extensively by Opposition leader Adrian Delia in parliament yesterday.

The bill, he says, leaves much to be desired, with Aquilina going as far as to say that it is “another example of how legislation should never be drafted”.

Aquilina argued that the Bill “flies in the ace of established constitutional doctrines”, insisting that the government was acting in bad faith when it claimed that it was implementing the Venice Commission’s recommendations through the proposed legislation.  

Among the point raised by the former dean was the fact that the Bill only addressed one of the conflicting roles of the Attorney General, without addressing other criticism, such as, for example, the AG’s role as chair of the Financial Intelligence Analysis Unit (FIAU).

Moreover, he said that rather than allowing for judicial review of the Attorney General’s decision, the Bill concentrates power in the office’s hands.

"Clearly Cabinet has approved a Bill proposed to it by the Justice Minister which is half-baked and ill-conceived, and has been drafted hastily, shabbily, superficially, and without enough thought and research put into it," Aquilina insisted.

Bill not intended to implement all proposals – government

Among the points raised by the government in its reply was the fact that the Bill’s intention is not the implementation of all of the Venice Commission’s proposals at once, “but that of understanding the issues listed in the Venice Commission Opinion with regard to the prosecutorial services in Malta”.

“As has been stated various times, other legislative Bills will follow in the coming months,” the government said in response to criticism about the fact that it does not address the fact that the AG is currently the chair of the FIAU.

Moreover, it said that changing the present magisterial inquiries system requires “further debate and reflection”.

Referring to criticism of a clause allowing the minister to substitute references to the Attorney General with a reference to the State Advocate did not apply to the Constitution, laws of a criminal nature, or laws regulating the conditions of service of the Attorney General.

“Clauses which entitle the Executive to change a principal law are not unacceptable as long as they are well defined and do not involve an abdication of the legislative functions of Parliament,” the government said, adding that the clause in the Bill met such criteria.

Another point flagged by the government was regarding a claim by Aquilina that the presence of the AG on the Judicial Appointments Committee an on the Commission for the Administration of Justice was in breach of Strasbourg case law and which the government said it had legal advice to the contrary. However, the government said it remained open to discussing the point further.

It also denied that two new appointment committees were being proposed for inclusion in the constitution.

“There is no such Constitutional amendment proposed,” the government said. “The ad hoc appointment commissions for the future appointments of the State Advocate and the Attorney General are being proposed in the laws regulating those two offices and not in the Constitution. A specific selection process for these offices in completely in line with the Venice Commission on the subject.”

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