The election of the Labour administration in 2013 led to the establishment of the Justice Reform Commission under human rights lawyer Vanni Bonello. Among a range of other matters for reform, the commission considered very carefully the revision of the system of appointing an inquiring magistrate by replacing him with a fully-fledged ‘Prosecutor General’.
It concluded that the prosecution functions of the Attorney General should be hived off and be vested in another officer – the Prosecutor General. A Prosecution Service would be established within the Ministry of Justice, having its own legal personality and independent of the Attorney General.
The Prosecutor General would concentrate solely on the criminal process set out in 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.
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 main recommendations of the Bonello Commission were imaginative and pragmatic in uniting the existing centuries-old responsibilities of the police with the complexity of today’s criminal realities. Most importantly, they would ensure 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.
The government did not adopt the commission’s recommendations. But in the face of the recent strong criticism by the Venice Commission on the weakness of Malta’s constitutional checks and balances, Justice Minister Owen Bonnici agreed last month to hive off the prosecution role from the Attorney General’s functions by setting up a free-standing ‘Public Prosecutor’. Regrettably, it is unclear how independent his role will be in reality. It seems the government intends to retain the power to appoint the person who will fill the role. Alarm bells should be ringing.
As Chief Justice Emeritus Vincent De Gaetano, now a judge at the European Court of Human Rights, has said: “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.”
He drew a parallel with the systems in place in Europe, where the investigation and the prosecution of serious offences are generally conducted by a public prosecutor who is a member of the judiciary. This “guarantees more independence, not only in the prosecution stage but, above all, in the investigation stage”.
Given the widespread public concern about the existing checks and balances on the executive, the establishment of an independent Public Prosecutor is a crucial step forward. But it is essential that the appointment should be seen to be utterly independent of the government and that s/he has the necessary constitutional and legal guarantees to ensure autonomy from the executive.
That independence and autonomy will be immediately undermined if the incumbent is seen to have been appointed by the executive. The selection process must be tied to the judicial selection process and must be seen to be transparent and based solely on merit.
This is a Times of Malta print editorial