Government’s lawyer cannot also be public prosecutor
While half of the country is calling for the Attorney General Peter Grech’s head to roll, and the other half echoes the Prime Minister Muscat in saying that there is no basis for him to step down, many are overlooking the fact that the main problem with the Office of the Attorney General is the way it is set up.
In its current form, the office will always be marred by a huge conflict of interest in cases of suspected wrongdoing by government officials, irrespective of whether the Labour Party or the Nationalist Party is in government.
The attorney general, appointed by the President on the advice of the Prime Minister, acts both as a lawyer to the government, advising it on legal matters and representing it in court, and also as the public prosecutor.
The law grants the attorney general the power to “institute, undertake or discontinue” criminal proceedings against individuals or groups. In fact, certain prosecutions initiated by the police require the attorney general’s previous consent.
Until the Panama Papers scandal broke, there was no issue with the set-up of the attorney general’s office. But that same set-up came under heavy scrutiny when the office was expected – and failed – to initiate proceedings against people who are high up in government.
Like the police commissioner, the attorney general was handed damning FIAU reports that found reasonable suspicion of money laundering by top government officials, yet no proceedings were instituted.
People rightfully expected that just as the attorney general’s office initiates proceedings against drug dealers and murderers, it should also have taken action in the face of this apparent wrongdoing by members of the political class.
But in the eyes of the people, it failed to do so for the simple reason that your lawyer cannot also be your prosecutor.
Civil society and the Opposition are not only calling for the resignation of the police commissioner and attorney general, but also for a constitutional reform which would see these roles filled by a two-thirds majority in the future. At present, the attorney general can only be removed by a two-thirds majority. On the other hand, attorneys general are appointed by the President, on the advice of the Prime Minister.
Attorneys general can be removed only by a parliamentary resolution, backed by two thirds of MPs on the ground of proved inability to perform the functions of their office (whether arising from infirmity of body or mind or any other cause) or proven misbehaviour.
Naturally, the government and the Opposition will never agree on this, and no two-thirds majority will be garnered to impeach the attorney general. As such, it seems that the demands being made by the Civil Society Network and the PN will never be acceded to under this administration.
In the face of this impossible hurdle, the focus should be on reforming the set-up of the attorney general’s office – a proposal backed by the president of the Chamber of Advocates, George Hyzler, when interviewed on INDEPTH.
The Constitution states that the attorney general “shall not be subject to the direction or control of any other person or authority” during the course of criminal proceedings.
But in the case where the suspects are politicians, and especially in cases such as the Panama Papers, where there was a complete lack of action against the suspects, people can never believe that the attorney general’s office is not under some form of pressure from the government.
That is exactly why the attorney general’s two different roles have to be split. There needs to be a public prosecutor’s office independent of the government and of the attorney general.
The public prosecutor should be appointed by a two-thirds majority, ensuring that only individuals with the highest level of integrity, who are beyond reproach and have no conflict of interest, make the cut – individuals who would have no problem prosecuting members of the political class when the need arises.