Process to appoint State Advocate to get started tomorrow

● Public call for applications expected to be issued to fill the new post

The process to appoint a state advocate, after the previous dual role of the attorney general was split, can begin as form tomorrow after the justice ministry published a legal notice on Friday “enabling the execution of the process for the appointment of a state advocate” as from 29 July.

The controversial State Advocate Act stipulates that when there is a vacancy in the Office of the State Advocate, the minister responsible (in this case Justice Minister Owen Bonnici) is to appoint a commission consisting of a chairperson and not less than two and not more than four members to be composed of persons “who in his opinion are respected and trusted by the public and are technically qualified to examine whether candidates for the office of state advocate have the appropriate qualifications and other merit and suitability requirements to occupy the said office.”

The appointment commission will then issue a public call for applications open to persons who have the necessary qualifications and experience, after which it will examine the candidates and submit a report to the prime minister through the justice minister “expressing its views on the eligibility, suitability and merit of the candidates. In said report, the commission may either limit itself to giving an opinion on the candidates or it may rank them in order of preference.”

The law also states: “In deciding upon his recommendation to the President in terms of Article 91A of the Constitution for the appointment of the state advocate, the prime minister shall give due consideration to the recommendations of the appointment commission.”

Splitting the roles of the attorney general to provide for a state prosecutor’s office had been demanded by the Council of Europe’s Venice Commission in its appraisal of the rule of law in Malta.

Malta’s adaptation has, however, come under fire for having fallen well short of the mark demanded by both the Council of Europe’s rapporteur on Malta and the country’s leading legal minds.

It was described, for example, as “yet another classic example of how legislation should never be drafted” and as a “parody of the December 2018 Venice Commission report,” in a scathing paper on the bill written by former Faculty of Laws Dean Kevin.

“It has conceptual flaws. It is shabbily drafted. It is a parody of the December 2018 Venice Commission’s report. It flies in the face of established constitutional doctrines. It is legislative drafting mediocrity at its best. In sum, it is yet another classic example of how legislation should never be drafted,” Aquilina said.

Aquilina noted eight significant points of criticism about the bill, but dedicated the bulk of his analysis to comparing the bill with the Venice Commission report – a comparison which, he said, reveals ‘inconsistencies’ between both documents “which indicate that the government is in bad faith when it claims it is implementing the Venice Commission report and complying with its international law obligations.”

He noted, firstly, that while the bill addresses one of the conflicting roles that the attorney general holds – that of prosecutor and legal advisor to the government – it does not address the commission’s criticism of the attorney general being the chair of the Financial Intelligence Analysis Unit (FIAU).

While the Venice Commission had criticised the attorney general’s “absolute and unfettered discretion in deciding upon the exercise to institute, undertake and discontinue criminal proceedings,” the new bill, rather than allowing the judicial review of the attorney general’s decision, instead increases the powers of the attorney general and concentrates more power in his hands, according to Aquilina.

“This is in line with the prime minister’s current autocratic concentration of powers heavily criticised by the Venice Commission report.”

Aquilina quoted the commission report, which noted the concentration of power in the hands of the prime minister and the need for the system of checks and balances to be reinforced, and said that the bill goes in the opposite direction of what the Venice Commission noted and deviates from accepted international practice in leaving the appointment of the attorney general in the hands of the prime minister.

The former dean also noted that a number of recommendations that the Venice Commission put forward had seemingly fallen on deaf ears and had not been included within the bill.

“The government seems to have no difficulty breaching the rule of law,” Aquilina said before adding that in ignoring the recommendations of the Venice Commission, “the only legitimate conclusion that one can arrive at is that the government is deliberately acting in bad faith.”

Aquilina had also listed various other points of criticism, noting that it breaches the separation of powers doctrine and recourses to ‘unorthodox baffling nomenclature’.

He noted that the bill places Malta at loggerheads with the Council of Europe, the European Court of Human Rights and the European Union and questioned whether the values enshrined in the bill be enacted into law or whether the European values cherished by these three international institutions ‘but despised by the Maltese government’ be enacted into law.

“The government is purposefully dragging its feet to implement the Venice Commission report and, five months after the publication of this report, it has attempted to address only one topic – quite deficiently – of the report,” he wrote.

“This does not augur well for the respect of the rule of law in Malta. Indeed, there is a constitutional rule of law crisis in Malta.”

Justice Minister Owen Bonnici