Whose discretion is it anyway?

Earlier this year, the Attorney General defended the legality of a freezing order made within the precincts of a defamation case. The request was frowned upon by the court, who, very sanely, expressed its concern at what was a clear case of overkill.

The Attorney General is arguably the most powerful person around, whose discretion is unchallengeable in a great many instances
- Michela Spiteri

Although the request has since been withdrawn, the principle and arbitrariness remains unchanged. The fact that the law allows the AG to freeze assets willy nilly, even in situations which clearly don’t warrant doing so, is terrifying and an invitation to abuse of power.

Asset freezing should be restricted to those instances where assets form an integral part of the crime and may eventually need to be recovered. Freezing someone’s assets because he may have threatened someone verbally is like killing an ant with a machine gun.

It will undoubtedly come as no surprise, that in Malta, the AG is arguably the most powerful person around, whose discretion is unchallengeable in a great many instances. In the exercise of his powers, he is “not subject to the control of any person or authority”.

He’s also responsible for most of the country’s legal drafting, particularly criminal law drafting, where his input is most compelling.

To mention another of his far-reaching powers: under our law, serious drug offences are triable before one of two courts. The difference between one and the other is hardly cosmetic. A rose by any other name would smell as sweet, perhaps, but certainly not a court.

In fact, the same offence could land you before the Court of Magistrates, where you would face a minimum six months and maximum 10 years’ imprisonment in addition to a maximum fine of €11,000; or to trial by jury in the Criminal Court, which could mean anything between four years and life imprisonment and a fine of up to €116,000.

The difference between one court and the other is a cool hundred thousand and the rest of your life.

It’s spine-chilling and the most frightening part is that the decision to try a person before one court instead of the other is entirely arbitrary, and once again, lies with the AG, who has a completely unregulated, free hand in the matter. Our courts never questioned this discretion and for the longest time he was not answerable to anybody.

Until January 22 this year, when the European Court of Human Rights sat up and took notice. It found this decision to be subjective, invariably leaving room for arbitrariness. Thank God for Europe and small mercies.

Camilleri vs Malta may have finally burst the AG’s bubble or deflated it somewhat. At the very least, I hope it will finally do away with this Russian roulette style of justice.

Let me make it clear that any references I make to the AG refer to the institution as it has evolved over the years, and not to the person who happens to inhabit the role at the moment. One swallow doesn’t make a summer and one very unassuming man who inherits a title doesn’t suddenly epitomise the office and certainly cannot be blamed for all its faults.

And yet, some things need to be said. I do believe that the AG may be experiencing some sort of identity crisis, largely due to his having too many fingers in too many pies, which doesn’t do him, and certainly doesn’t do anybody else, justice.

Although many think of the AG solely in terms of public prosecutor and glorified Police Commissioner – namely the person who ultimately draws up the bill of indictment, commits people to trial and requests a conviction – in truth, that is only one very small slice of his pie.

The AG has a very specific and decisive role in the pre-trial stage, which comes into play whenever someone is charged with a crime which exceeds six months’ imprisonment.

It could take years for a person charged by the police to actually stand trial. During this time, the AG ought to be supra-partes.

He is a chief magistrate whose role is quasi-judicial. He is certainly not meant to parrot the Police Commissioner, nor be a charge copy-cat. He is there to supervise the investigative work of the police and that of the court with an open mind, in order to best decide whether there really is a case against the accused. Today, I rather fear, that like people who botox and overstretch themselves beyond recognition, the AG’s self-aggrandisement has distorted his identity and judgement to the extent that he’s created a self-inflicted incompatibility with his own role and office.

When you have the Commissioner of Police and the government breathing down your neck, you are certainly not free of pressures or interference. Which is why, when we were told that the Olaf report was subject to the control of both the Attorney General and the Police Commissioner, who, acting in unison, requested a delay in submitting it before the court, we couldn’t but regard it sinisterly.

The AG’s links to the Police Commissioner and government also make him well-positioned to formulate and modify laws to suit his and their purposes. He’s at once architect, designer, manufacturer and executor of the law.

Moreover, most every decision the court makes is ultimately reviewable by the AG, making the court unnaturally concerned with pleasing the AG rather than risk his wrath and be second guessed. What sort of separation of powers can there be when a court’s decisions aren’t always final?

Who is controlling whom? If the AG is not entirely independent of the police and the court is frequently being reduced to a rubber stamp, who exactly is calling the shots?

And doesn’t this pose a real threat to justice, democracy and the presumption of innocence? Can the accused really sit back and trust in the system and in justice after all?

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