The government and the opposition argued in parliament yesterday over whether the Attorney General may, in terms of the Constitution, delegate his powers to institute, undertake and discontinue criminal proceedings to the Prosecutor General.

The debate stemmed from clause five of the bill amending the Attorney General and Counsel for the Republic (Constitution of Office) Ordinance, which is being considered in committee.

The bill`s main purpose is for the setting up of the office of Prosecutor General. The bill as drafted also proposed amendments to the Constitution to put the Prosecutor General on a par with the Attorney General. Since no agreement has been reached with the Opposition, however, the government has said that the Constitution will not be amended and the Prosecutor General, while having his own responsibilities, will be subject to the delegation of the Attorney General in matters which the Constitution establishes as being the duties of the AG.

Early in yesterday`s debate, Opposition justice spokesman Anglu Farrugia objected to an amendment to clause five of the bill providing that the Attorney General may delegate his powers. Dr Farrugia argued that in terms of article 91 (3) of the Constitution, it was only the Attorney General who could, in his individual judgment, institute, undertake and discontinue criminal proceedings. The Constitution did not say that this power could be delegated.

Justice Minister Austin Gatt said it was not the Constitution which gave the Attorney General the powers to institute, undertake and discontinue criminal proceedings, but that came from other laws. The purpose of the constitutional article quoted by Dr Farrugia was to lay down that the AG shall not be subject to the direction or control of any other person or authority as he instituted or discontinued criminal proceedings. Indeed, the AG had been delegating his powers for years, without problems.

Dr Farrugia insisted that the AG alone could institute and discontinue criminal proceedings, without anybody`s direction or control. He could not delegate this particular power. What the government was proposing went against the spirit of the Constitution.

Dr Gatt said that had Dr Farrugia been correct, he did not think that Prof. J.J. Cremona, who had authored the Constitution, would, as Attorney General, have allowed his subordinates to institute or discontinue legal proceedings. The Attorney General had always delegated these powers.

Dr Farrugia suggested further advice be sought, possibly even from Prof. Cremona himself.

Dr Gatt said he had no intention of suspending the debate because his position was clear. The AG`s right to institute or stop criminal proceedings was given by various laws, not the Constitution. The Constitution only protected the AG`s independence when he exercised this right. The specific law on the Attorney General provided that the AG could delegate his powers and this was never contested since Independence. This bill was therefore correct.

During the debate on clause six, Dr Gatt said the Attorney General and the Prosecutor General would work within agencies instead of within the civil service, as was the case at present with regard to the office of the Attorney General.

Dr Gatt said this was the first time that government agencies were being set up by law, although other agencies, such as Sedqa, existed. The agencies would have their own legal personality and in terms of administration, be separate from the civil service. They could thus offer different working conditions and follow more flexible working practices. Their annual and financial reports would be tabled in parliament. Employees working in the Attorney General`s Office may opt to move to one of the new agencies.

Dr Farrugia observed that the bill did not mention the posts of deputy attorney general, the AG`s assistants, senior counsel for the republic and counsel of the republic, as currently laid down in the ordinance. But the bill provided that the agencies could farm out particular jobs to private firms. The opposition had warned during the second reading debate that this could give rise to conflicts of interest.

Furthermore, the bill did not define "agency".

Opposition leader Alfred Sant asked whether there was a specific legal concept of "agency."

Dr Gatt said the laws defined the civil and the commercial concepts of "agency." Malta, unfortunately, did not have a Public Service Act so far, and development in this sector had been haphazard, expanding into corporations, authorities, commissions, non-commercial corporate bodies such as the University, foundations and also agencies, such as Sedqa, which were not covered by law.

Dr Gatt said there were many definitions of "agencies" abroad. It was agreed that they should be service oriented-sectors of the public service where little policy-making was involved. Such agencies should be administratively separate from the civil service but accountable to parliament, and the government would remain responsible for policy. They could offer their own conditions of work according to market demands, enabling them to attract the staff they needed.

Dr Sant said that independently of his views on what the minister had said, the agencies were being set up ad hoc. There was need for a proper definition to apply generally.

Dr Gatt said ideally Malta should have a Public Service Act which would lay down regulations for authorities, agencies and similar bodies instead of having legislation for each.He hoped a white paper on a Civil Service Act would be issued by July.

Dr Sant asked whether a corporation could be set up instead of an agency.

Dr Gatt said a corporation was commercially-oriented.

Replying to Dr Farrugia`s remarks, he said one had to be careful to whom one awarded contracts to do work for the Attorney General. But one could not rule out farming out. Malta had over the years engaged private firms with regard to litigation abroad. Private firms had also assisted in legal drafting. He would find it difficult to see criminal prosecutions being made by private firms, although that was the case in the UK. But would it have been wrong if, for example, former leading prosecutors were, upon retirement, asked to conduct a number of trials, subject to adequate safeguards?

Given the limited expertise available, one should allow himself the possibility of leeway.

As for Dr Farrugia`s reference to titles, Dr Gatt said he did not feel legislation should go into excessive administrative detail, but there would be many posts under the Attorney General and the Prosecutor General, such as senior and junior prosecutors. He could not guarantee that holders of current posts would retain their posts, since conditions would be different, but they would all have a place in the agency. The posts would be open to competition. Holders of current posts could opt for the new posts or retain their current civil service grade. In the selection process one had to have the courage to decide who was good, and who was less good. One could not transpose the bad civil service systems to the new structure.

The debate continues.

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