In Malta the Attorney General performs a dual function: he is the Government’s chief legal advisor and Malta’s top criminal prosecutor. The AG’s office carries out both these duties together with other duties such as vetting legislation prepared by ministries, drafting laws and regulations for the ministry responsible for justice, advising various government departments both as to court and out of court litigation and taking civil action against those persons who have defaulted from paying their dues to Government.
In one court he is acting as the Government’s right hand man; in another he is trying to act in an independent manner
Insofar as the criminal side of the Attorney General’s functions is concerned, the AG is totally independent from Government when he exercises the criminal action or when he decides not to continue with criminal proceedings. This emerges quite clearly from article 91(3) of the Constitution which reads as follows: “In the exercise of his powers to institute, undertake and discontinue criminal proceedings and of any other powers conferred on him by any law in terms which authorise him to exercise that power in his individual judgment the Attorney General shall not be subject to the direction or control of any other person or authority.”
His office acts as legal advisor to the Malta Police Force and he also sometimes appears in court as legal counsel to the police when they are prosecuting certain serious cases in the Courts of Magistrates, more so where the Attorney General’s office might eventually have to file a bill of indictment in the Criminal Court. Once a criminal inquiry is concluded the record of the proceedings is submitted to the Attorney General’s Office and it is this office which decides whether to file a Bill of Indictment, whether to refer back the record of the proceedings to the Court of Magistrates to deliver its decision or to collect further evidence or whether to stop criminal proceedings.
He also receives the reports drawn up by inquiring magistrates and may require the collection of further evidence or the taking of other investigative measures thereupon.
All reports made by the police to inquiring magistrates are copied to the Attorney General and case law considers him to be a Chief Magistrate in this respect even though, strictly speaking, he enjoys the status of a Judge of the Superior Courts.
On the other hand, the Attorney General is the legal advisor to Government. As the Government’s loyal and trustworthy advocate, that is, in his capacity of lawyer to ministers and government departments, he has to safeguard its interests at law.
This means he has to file in court all judicial acts, written pleadings and other documents required to make the case of the Government. Whenever the Government is sued, he has to be notified with judicial acts and written pleadings. In this sense, he is too close to the administration of the day and cannot be perceived to be independent.
As the Government’s lawyer, he takes his brief from his sole client and is entirely dependent on Government as to the course of action to be taken in civil proceedings against Government. Sometimes it is difficult to distinguish the Attorney General from his sole client. He is the main fount of advice to Government and the public service. In this respect he is far from perceived to be independent.
The Attorney General, as a public officer, has got much of a split personality, very similar to Dr Jekyll and Mr Hyde: in one court he is acting as the Government’s right hand man; in another he is trying to act in an independent manner. It is difficult to perceive of an independent Attorney General when such officer is the lunga manus of Government. The point I am making in this contribution is not novel at all. The Nationalist government had recognised this some years ago when it proposed to create a Director of Public Prosecutions and separate the criminal law functions of the Attorney General to assign them to the newly established office of Director of Public Prosecutions. But this was not to be and hence we still have one officer who, while being Government’s legal advisor, acts independently insofar as criminal prosecutions are concerned.
One must remember that the Attorney General has considerable powers at law such as deciding where a person is to be tried in drug cases, authorising the police to institute the criminal action under certain laws, deciding which cases are to be discontinued, which are to be tried by the Criminal Court, what new evidence is to be compiled by the Court of Magistrates and inquiring magistrates. He can order the arrest of certain persons without a Magistrate’s warrant, and so on. It is therefore high time the functions of this office should be divided into two: criminal law functions should be assigned to a Director of Public Prosecutions and civil law advocacy functions assigned to the Attorney General. The perceived conflict of interest in the AG’s functions needs addressing by hiving off the criminal law functions from his office.
In this way all citizens can put their mind at rest that the Government is in no way attempting to influence him in the independent exercise of his criminal law functions.
This convoluted mentality is also present in the Public Administration Act. This enactment considers the Office of the Attorney General as a government agency. A government agency enjoys no independence from the Government in terms of the Public Administration Act.
On the other hand, independent institutions such as the Ombudsman, the Auditor General, the Data Protection Commissioner and others are established expressly by law as bodies corporate in their own right and not as government agencies. Whilst a reformed Attorney General’s Office, acting as the Government’s lawyer in civil proceedings, can be set up as an agency of government, the same cannot and should not be said of the Director of Public Prosecutions whose office should be set up by law as an independent body corporate.
Kevin Aquilina is Dean of the Faculty of Laws at the University of Malta.