Independent prosecutor

If we are to progress as a rule-based democracy, we need to ensure that the machinery of law, order and the administration of justice is in good working order.

These thoughts were uppermost in my mind as I pondered the allegations about corruption eating like a canker in Maltese society during the heat of the electoral campaign, and what should be done about it. They came to a head when it turned out that the Commissioner of Police had concluded he should ignore – for reasons which were never satisfactorily explained – recommendations made by the Financial Intelligence Analysis Unit to investigate suspicions of money laundering by a named individual.

I was forcefully reminded of this failure following a wide-ranging interview in this newspaper last week with Chief Justice Emeritus Vincent Degaetano, who is now a judge at the European Court of Human Rights in Strasbourg.

He was asked for his views about establishing a special branch of the judiciary to investigate and prosecute serious crimes, rather than leave this to the Commissioner of Police. His response was clear-cut: “Unless you have a really independent investigative service for serious offences, you cannot feel confident that the police, part of the executive arm of government, will properly investigate offences possibly involving high-ranking people in the executive itself.

“In England and Wales, which had a very similar system to ours until 1985, investigations were conducted by the police, who would then prosecute. Now, each police force has to submit its investigation file to the Crown Prosecution Service, which then decides whether there are sufficient grounds for prosecution. This still leaves the investigation in the hands of the police, but subject to the review of staunchly independent bodies: the Inspectorates of Constabulary and the Independent Police Complaints Commission.”

Degaetano also drew a parallel with the systems in place in continental Europe, where the investigation and the prosecution of serious offences is generally conducted by a public prosecutor who is a member of the judiciary. This, he said, “guarantees more independence, not only in the prosecution stage but, above all, in the investigation stage”.

It has been apparent for the last 20 years that there are areas of our justice system which are crying out for improvement. The arrival of the Labour administration in 2013 led to the establishment of an outstanding Justice Reform Commission under Judge Vanni Bonello. The comprehensive report by the Commission for the Holistic Reform of the Justice Sector was concluded less than nine months after the swearing in of the then new government.

Among a range of other matters for reform, the commission considered very carefully the development of the current system of appointing an inquiring magistrate by replacing him with a fully-fledged “prosecutor general”. The report went on to make a number of key recommendations for the reform of the prosecution services in Malta, which chimed in closely with what Degaetano said recently in his interview.

In sum, the commission envisaged that the prosecution functions of the Attorney General would be hived off and would in future be vested in another officer, to be known as the prosecutor general. A prosecution service would be established within the Ministry of Justice. This would have its own legal personality and be independent of the Attorney General.

The prosecutor general would concentrate solely on the criminal process set out in article 91(3) of the Constitution, leaving the Attorney General to focus, as now, on the vast range of other functions that fall to him as the government’s lawyer, from drafting laws, including subsidiary legislation, to giving advice to ministers and the public service, to defending urgent constitutional cases.

The prosecutor general would be given the constitutional and legal guarantees necessary to ensure his independence from the executive

The newly-vested prosecutor general would be given the constitutional and legal guarantees necessary to ensure his independence from the executive. For all prosecution purposes the police, who would retain their responsibilities for investigation, would be under the ultimate direction and responsibility of the prosecutor general.

The prosecutor general would have full powers to instruct, continue and stop criminal proceedings. He would have the right to prosecute any type of criminal case under Maltese law unless he chose to delegate specific cases to the prosecution unit of the police. But such delegation to the Commissioner of Police would still remain vested by law under his control and supervision.

The main recommendations of the commission were imaginative and pragmatic in uniting the existing centuries-old responsibilities of the police with the complexity of today’s criminal realities, our society’s unbridled greed and our readiness to feed it.

Most importantly, they would ensure when implemented that the prosecution of serious criminal cases was conducted by an autonomous judicial body which – unlike the Commissioner of Police – would be independent of ministers and the executive arm of government.

Regrettably, the commission’s recommendations have not been taken up by the government.

Degaetano’s objective and impartial reminder about the need for an independent prosecution service could not be more timely when confidence in the Commissioner of Police is at an all-time low and respect for the rule of law has taken a battering.

The cynical impression left by the government’s failure to implement these key recommendations by the Commission for Holistic Reform of the Justice Sector is that it is unwilling for our law to contain any provisions which would hold it to account.

It is timely for a second reason. As the government gears up to establish its long-promised Convention on the Constitution of Malta, the way in which our Constitution improves on accountability, transparency and commitment to the rule of law in all aspects of government will be key. Given the widespread public concern about the existing checks and balances on the executive, the establishment of an independent prosecutor general would be a crucial step forward.

We like to think of ourselves as a country built on law. Indeed, we present ourselves to the world as a country where the law is robust and neutral, a law that fears no one and favours no one because, among many other things, our reputation as a financial services centre depends on it.

Respect for the rules, especially when they throw up unpopular decisions, is a cornerstone of civilisation. It enables people to plan, to invest, to negotiate and to live without fear of arbitrary interference. All lapses weaken the institution of the rule of law that is so vital to our future, our freedom and to our quality of life.

The need to ensure that we have a prosecution service, which is autonomous and capable of calling to account those who have offended against the law without fear or favour, is a vital component of a competent, efficient and fair justice system.

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