Your leader ‘Power to inquiring magistrates’ (April 25) raises food for thought. In this respect, I remind readers of the final report of the Commission for the Holistic Reform of the Justice Sector (the so-called Bonello Commission) which was concluded on November 30, 2013, and submitted to the government for any possible action it might want to take thereupon.

The report was published by the ministry responsible for justice and also translated into English. Among other things, it had already considered the future development of the office of inquiring magistrate into a fully-fledged Prosecutor General. The report further contains a series of recommendations related to the reform of the prosecution services.

The final report, in a relevant part related to the office of Prosecutor General, recommended inter alia the following.

Measure 148: Distribution of the Functions of the Attorney General. Since to date, the Attorney General wears many hats, from those of a government’s lawyer to that of a prosecutor, from that of drafting laws to that of serving on a number of boards, the commission feels that it is necessary that the prosecutorial function of the Attorney General is weaned from him and vested in another officer, the Prosecutor General.

In this way, the latter can concentrate only on the criminal process and does not have other things to attend to that distract his work such as defending urgent constitutional cases, collecting the money owed to the government, giving advice to ministers and to the public service, drafting laws including subsidiary legislation, and where this is not made by his office, vetting such laws, etc.

This measure requires an amendment to the Constitution of Malta in the sense that while the office of Attorney General remains a constitutional office and the Attorney General retains the status, functions and conditions of employment enjoyed today, the function referred to in article 91 (3) of the Constitution (related to the exercise of the criminal action) should be henceforth vested in the Prosecutor General.

Consequential amendments would be needed to ordinary laws for the carrying out ofthis measure.

The Prosecutor General should have such constitutional and legal guarantees necessary so that his independence from the executive is maintained.

On the other hand, the Attorney General and the lawyers in his office should have the same conditions of employment of the Prosecutor General and of staff at the office of the Prosecutor General.

The Final Report of the Bonello Commission continued to elaborate as follows.

Measure 286: Establishment of Prosecution Service. A Prosecution Service within the Ministry of Justice should be established. This should be headed by the Prosecutor General and although it forms part of the Ministry of Justice it should be autonomous and independent from the minister.

This service should be responsible for prosecution of criminal actions in all courts of criminal jurisdiction and should serve as the competent authority for assistance and international legal cooperation of a criminal nature.

For Prosecution purposes, the police should be under the ultimate directions and responsibility of the Prosecutor General.

Measure 287: Powers of the Prosecutor General. The Prosecutor General should have full powers to instruct, continue and stop criminal proceedings on behalf of the Republic of Malta and to perform all such functions related to instruction, completion and suspension of criminal proceedings. Any court case of a criminal nature should be prosecuted by the Prosecutor General and he should have the right to prosecute any type of criminal cases and issue indictments for every offence in terms of Maltese law unless he chooses to delegate the prosecution to the Prosecution Unit of the Police Force as is being suggested in this report, and/or to any other department of the Police Force under the terms that he may delegate to the Commissioner of Police.

Therefore it is up to the Prosecutor General to oversee all the work of the police when he decides to delegate certain prosecution duties to the Police Force. Every prosecution in Malta should be under the responsibility of the Prosecutor General, whether it is conducted by his office, or not, and when the prosecution is not carried out by his office, the Prosecutor General should be vested by law with the control and supervision of all those prosecutions, with the last word vested in him.

Thus, the note of appeal according to article 414 of the Criminal Code will no longer be needed since even when the police are acting as prosecutor in the inferior courts, such prosecution will be performed under the Prosecutor General’s supervision and direction.

Measure 288: Ordinary Law Regulating the Operation of the Prosecutor General. There should be an ordinary law that elaborates on the powers, functions and duties of the Prosecutor General and the Prosecution Service as provided by the Constitution in accordance with what is stated further down in this report.

Measure 289: Constitutional Protection for Prosecution Service. The Prosecution Service should enjoy due constitutional protection and should be independent even of the Attorney General. It should have its legal personality separate and distinct from any other authority and be totally independent from the government in carrying out its functions. No authority, entity, person or other body should have the right to give orders or directions to the Prosecutor General or to the Prosecution Service.

The role of the Attorney General will change as he will no longer be involved in prosecution as stated in the measure entitled ‘Distribution of Functions of the Attorney General’ (Measure 148).

The Bonello Report also made proposals in relation to: the appointment and removal of the Prosecutor General, how the Prosecution Service is to be divided, investigative duties of the police, duties of the Prosecutor General’s Investigations Division, investigation of corruption, annual reporting, the establishment by law of a Prosecution Unit within the Police Force, coordination of the Police Prosecution’s Unit with the Prosecutor General, responsibility of the police to take its legal advice from the Prosecutor General, conditions of employment of the Prosecutor General, and the right of appeal allowed to the Prosecutor General.

The Ccommission’s report proposed that the Prosecution Service should have four sections: a division for prosecution services; a division for legal services; a division for investigation services; and a division of corporate services.

Laudable as all these proposals might be to hold government to account, they remain unimplemented. This is because the government has de facto consistently refused to implement these and other provisions in the Bonello Commission report which hold it to account.

Hopefully now that the country is in an election campaign, the political parties pledge that on assuming office they will implement the Bonello Commission report in its entirety within the first year of the next legislature for the benefit of the country as a whole.

 

Kevin Aquilina is the Dean of the Faculty of Laws at the University of Malta.

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