The Attorney General’s explanation in the Constitutional Court that he had decided against supplying the Opposition Leader with a full version of the Egrant report, because that would have been tantamount to letting it loose in the political arena or publishing it online, has the ring of validity. But a deeper analysis of that reasoning and AG Peter Grech’s course of action raises vexing questions.

To begin to answer those questions we must consider the discretionary powers vested in the AG by the relevant law. Magisterial inquiries are held in secrecy and upon completion the inquiring magistrate draws up a report, called procès-verbal, and submits it to the AG who then decides on the course of action depending on the findings. Charges may be issued, or additional investigations by the police initiated, or the report kept under seal and the matter closed if there is no evidence for prosecutions or additional probes.

Unless charges are issued, in which case the findings would eventually have to be presented as evidence in an open court, the law vests the AG with sole discretionary powers on matters of divulgence of the report. Any interested party, including the person investigated, can through his lawyer request the procès-verbal from the AG, but whether that request is granted, and in what manner or form – full report, conclusion, redacted version – is in the AG’s absolute discretion. 

In the case of Egrant, the AG granted the request by Prime Minister Joseph Muscat’s lawyer Joseph Lia for a full copy of the report. Separately and concurrently Dr Grech decided to directly publish the conclusions.  

A synthesis of Dr Grech’s testimony, as well as earlier pronouncements and press statements, shows that he felt the Prime Minister merited the full version because he had requested the inquiry and because details of the full report bore political implications for Dr Muscat. Dr Grech also testified that a main factor militating against publishing the entire report, or providing it to Dr Delia, was third-party banking information that had to be kept hush as well as revelations that may jeopardise ongoing investigations. It is to be noted that Dr Grech could, of course, have chosen to redact sensitive sections for the sake of privacy and ongoing investigations. 

The AG’s lines of reasoning would have been unassailable had he decided that no one ought to receive a full copy, if his office had simply published the conclusions and explained the reasons for keeping the rest under seal. For the decision to provide Dr Muscat with a full copy was not predicated in legalisms or jurisprudence: it was a decision based on logic of a political nature. It was a reasoned opinion that has indeed played out in the ‘political arena’.

In this scenario, Dr Grech’s reasoning – that he did not provide the Opposition Leader with a full copy of the report to keep it out of the political fray – has become wobbly. The report has already found itself in the ‘political arena’, so much so that the Prime Minister has been making rhetorical allusions to – or insinuations about – information in the full copy for oblique political gains or to dodge political ambushes by his political opponents.

Moreover, it is one of the interested parties, Dr Muscat, who is now privy to sensitive third-party information that the AG is purportedly keen to hide from Dr Delia. By virtue of having the full copy, Dr Muscat has cognizance of ongoing inquiries that have spun out of the procès-verbal as well as the depositions of people he may consider as foes, political or otherwise. In fact, going by Dr Grech’s own reasoning, neither Dr Muscat nor Dr Delia ought to have been given a full copy precisely to protect the integrity of other ongoing investigations. 

This doesn’t necessarily mean that Dr Delia should now be given a full version. That may exacerbate a situation already complicated, and risk making the report a more abused weapon in partisan warfare.

Another ramification of the AG’s action is that the decision to publish or not has now been appropriated by Dr Muscat. The Prime Minister has dithered about this: he initially said he would publish it, then that the report was being examined to check which parts could be published. This newspaper has reported sharp internal legal dissent against publication, from none other than the AG among others: a case of trying to close the stable door after the horse has bolted. It is supremely unsettling that the report was being checked by Dr Lia – a private lawyer who thereby appears to be involved in the decisions on what to redact – and not the AG.

Now, for several weeks, we have not heard anything else about the prospect of the entire report being made public.

In other words, the discretion vested in the AG at law has become, at least in part and in spirit, the Prime Minister’s discretion.

All of this raises questions about Dr Grech’s judgement and his independence from or subservience to the powers in Castille. More profoundly, it has brought into sharp focus the lack of robustness of the separation of powers in Malta, something that is essential in a democracy.

This is a Times of Malta print editorial