The Constitution lays down that “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 judgement, the Attorney General shall not be subject to the direction or control of any other person or authority”.
A lay person would interpret that provision as implying that when the Attorney General tells the police he believes there are sufficient grounds to prosecute a person, rather than mere advice, the Attorney General would be communicating a decision he made after evaluating the evidence brought to his attention.
The Attorney General has a number of functions within our system. As legal adviser to the government, the issue of lawyer-client relationship kicks in. Though one can easily understand that what is said between a client and a lawyer must remain between them, like anything else in life, there can be exceptions, especially when matters of political controversy are involved.
In such cases, it is up to the government to authorise the Attorney General to speak up. Not doing so could imply the government has something to hide, apart from putting the Attorney General in an awkward position.
This has, in fact, happened and even forced the Speaker of the House of Representatives to give a ruling on the matter when the Attorney General was summoned to appear before the Public Accounts Committee. It was decided that the Attorney General was bound by professional secrecy and only the government could release him from such confidentiality.
There are different schools of thought on the matter. Some argue the Attorney General would not be bound by secrecy in the criminal camp. There are also quarters that insist that once an advice given by the Attorney General is already in the public domain, then he cannot invoke professional secrecy.
The incumbent, Peter Grech, disagrees, as has become very clear in the case of former European commissioner and Nationalist minister John Dalli.
Dr Grech is on record as agreeing that Mr Dalli should be arraigned to face charges of trading in influence and bribery. This followed a meeting with senior police officers in late 2012. The police even got Dr Grech’s advice in writing. This was dated January 11, 2013 and a copy was exhibited during a sitting of the House Privileges Committee two years later.
Yet, Mr Dalli was never charged in court and the reason remains unclear. There have been some significant changes both in government and at the helm of the police force since. Dr Grech, however, remains in office.
Given his unequivocal stand about Mr Dalli’s case, at least until early 2013, one is justified to wonder whether Dr Grech has been subjected to some form of pressure not to see his advice being brought to its logical conclusion: arraignment.
This newspaper asked him directly whether he had since changed his opinion. His answer was: “No replies can be given as this was a matter of professional secrecy.” This thing about professional secrecy – raised also by some financial services operators in the Panama Papers controversy – has become a convenient way to hide when the going gets tough. It is almost a vice now.