Bill on separating AG’s role is a parody of the Venice Commission report – Professor Aquilina

Tista' taqra bil- Malti.

Former Law Faculty Dean Professor Kevin Aquilina has described the bill proposing the constitution of the Office of State Advocate and the separation of functions of state prosecutor from those of legal advisor to government, as a parody of the December 2018 Venice Commission’s Report.

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In a paper published on GħSL’s online journal titled The State Advocate Bill No. 83 of 2019: Acting in Breach of Malta’s International Obligations, the former Dean criticised the bill as it was put forward saying it is ‘shabbily drafted’ adding that it is “legislative drafting mediocrity at its best” and vehemently argued against its adoption by Parliament. He explained how the bill runs counter to the doctrines of the separation of powers and rule of law, thus making a parody of the Venice Commission recommendations.

‘Government acting in bad faith’

Law Professor Aquilina questions whether the Government’s intention to legislate that part of the Venice Commission Report on the separation of the office of legal advisor to the government from that of the Director of Prosecutions, is reflected in the Bill proposed. He further argued that on analysing the Bill and the Report, one finds inconsistencies between both documents. Adding that it indicates that “the government is in bad faith when it claims it is implementing the Venice Commission Report and complying with its international law obligations”.

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Among the examples cited by Aquilina, he points out that the Venice Commission questioned the various roles which the Attorney General carries out however the bill addresses only one such conflict. The Bill falls short of addressing the Venice Commission criticism of the role of the Attorney General as the chair of the Financial Intelligence Analysis Unit. Further, Aquilina observed that the Bill not only does not address the ‘absolute and unfettered discretion’ by which the Attorney General can decide on criminal proceedings, but increases more power in the hands of the AG contrary to what the Venice Commission has said in its opinion on the Maltese legal system. Thus, Aquilina remarked, the current bill is in line with the “Prime Minister’s current autocratic concentration of powers heavily criticised by the Venice Commission report”. Aquilina further added that by not providing for judicial review of the AG’s unfettered discretion in the institution, undertaking and discontinuing criminal proceedings which is found in the proposed Bill is in breach of the rule of law.

‘The government seems to have no difficulty with breaching the rule of law’

After enlisting eight points and explaining clearly what the Venice Commission has said and what was actually put down in the draft, the law professor concluded that “the government seems to have no difficulty with breaching the rule of law”. He further added that the only legitimate conclusion is that the government is “deliberately acting in bad faith”.

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