Recent developments in the justice field in Malta - January - June 2019
Following the report drawn up by the Venice Commission at the end of last year, having been invited to come to down to Malta by the Maltese Government in order to examine “Constitutional arrangements and separation of powers and the independence of the Judiciary and Law Enforcement”, the Government has just published a bill which sees to the separation of the Attorney General's dual functions.
This legislation will continue implementing reform in the justice sector by providing numerous measures so that the Attorney General's present functions as the primary public prosecutor, and as the primary Government consultant in legal matters, are separated and carried out by different officials and institutions which are independent from one another.
This situation has been present in Maltese legislature as from 1936, from the promulgation of the Direction Order concerning the Attorney General which consolidated the post of the Public Prosecutor and Treasury Lawyer in the role of the Attorney General. This consolidation was kept in the Maltese constitution, even after our country's independence, until today.
To separate the mentioned functions, a new vacancy of a State Advocate will be created, which will also be recognized by the Constitution and its holder will have the same obligations and enjoy the same protection as enjoyed by the Attorney General and the Members of the Judiciary. The State Attorney will be the primary consultant of the Government in relation to law and legal opinions and will be explicitly obliged to act in the public interest and safeguard the legality of the state actions.
The State Attorney will carry out their functions through an independent agency established by law in the same way that the Attorney General carries out their function. The appointment method will be the same as the Attorney General's, however, before the President forwards his recommendation, the Prime Minister is obliged to give appropriate consideration to the recommendations by the Appointment Commission, which will arrive to its opinion after a public call for applications. The same procedure will be carried out should there be a vacancy for the Attorney General's post and for this aim, the Direction Order regarding the Attorney General will be amended as well.
The Attorney General's duties in relation to the prosecution sector will be increased. The position will be given new powers to demand the police to investigate certain cases, to ask information from the police in relation to the state of investigations, and to demand the police to issue any charge for any crime. The Attorney General will also have the power to be a prosecutor within the courts, in relation to any crime.
Apart from the separation of the Attorney General's functions, this Act sees to the separation of the investigative functions which are generally carried out by the police (and which in certain cases are carried out by other public specialized agencies) from the prosecutorial functions. This is being done to ensure more independence of the prosecution. The aim is that eventually, prosecutions in Court are carried out by the Attorney General's office, however it is being envisaged that there is the need for appropriate transitional measures and full collaboration with the police's unit of prosecution, which is being formed and which also carries an important role in the strengthening of the prosecution.
This Act is also proposing the consequential change of other laws, including the Constitution, in order to provide an appropriate legal basis and to facilitate the transition to these functions from the Attorney General to the State Attorney.
The Act also sees to the possibility of transitional measures with the aim that changes are made in an orderly fashion and in a manner to avoid disputes in the prosecution and Government legal services sectors, which are essential for governance and general public order.