In 2019, with great pomp, parliament established the office of state advocate. The Venice Commission had justly criticised the fact that the attorney general has two conflicting roles; that of deciding who is to be criminally prosecuted, including high-ranking officers of the government, while at the same time being chief legal counsel to government in all court litigation.
Through a constitutional amendment agreed unanimously in parliament, the office of state advocate was established. His function was that of acting in the public interest to safeguard the legality of state actions.
In 2018, the highest court in civil jurisdiction in Malta came to the conclusion that the concession made to Vitals and Steward to manage three state hospitals was vitiated by fraud. It even remarked that this was the result of collusion between the supposedly foreign investors (who in actual fact invested nothing) and local government officers. It annulled the deeds of transfer at the initiative of the then opposition leader Adrian Delia.
Sometime later, Opposition leader Bernard Grech, and Delia as opposition spokesperson for health, requested the state advocate to start legal action to recover the damages suffered by the state through the negligence or outright malicious behaviour of members of the public administration.
Both the government and, strangely enough, the state advocate himself pleaded that the latter had no authority to spontaneously institute legal action – he boasted that the government had pulled his teeth out, to the very last one; the state advocate, this guarantor of the legality of state actions, begged the court to guarantee that he needed the fiat of the government of the day to start action against the government of the day!
So much for the state advocate being the guarantor of the legality of state action, or “the last man standing” as Minister Owen Bonnici, who piloted the constitutional amendment in 2019, had described him.
The court of first instance agreed with the state advocate’s restrictive interpretation of his role.
It even stated, rather bizarrely, that if the state advocate were to act spontaneously, without the nod of approval of the powers-that-be, there would be chaos, and the rule of law and the separation of powers would be threatened.
Rather than ‘a last man standing’, he would be the first man falling- Tonio Borg
The Court of Appeal, last December, lost an opportunity to clarify the autonomous nature of the office of state advocate. Appellants had argued that if the state advocate was only a mere counsel to government, why did the constitution grant him security of tenure, i.e. he can only be removed from office by a two-thirds majority of all the members of parliament?
Normally, a client is always entitled, with or without reason, to discontinue the services of his lawyer. The state advocate cannot be removed so easily because his function, that of ensuring the legality of state actions, whether the government of the day likes it or not, requires protection from the powers-that-be.
The Court of Appeal decided last December that although the state advocate, in that particular case relating to transfer of government land in breach of the law, could start legal action to protect the state’s interests, because the law relating to transfer of state property so expressly allowed it, there was no duty on the part of the state advocate to institute such action!
That decision was exclusively within the discretion of the state advocate, not a duty which could be enforced in a court of law.
The pretext which the Appeals Court found to justify this unreasonable conclusion was that the constitution states that the state advocate is “not subject to the control or direction of any other person or authority”. Such a clause, however, guarantees the autonomy of the state advocate from interference by the government of the day. It does not block court scrutiny.
This is clearly stated in the last article of the constitution which states that such a phrase does not block court review.
That such phrase does not prevent judicial review is also supported by the jurisprudence of the Constitutional Court. The autonomy clause does not prevent a court of law from examining whether the holder of the office, enjoying such autonomy, acted according to the law and the constitution. The court, ignoring the constitutional imperative that the state advocate is the guarantor (not the humble lackey by permission) of the legality of state actions, awarded him the certificate of impotence he craved.
Is this the twilight of the powers of the state advocate as guarantor of the legality of state actions? If the person who is tasked with the constitutional responsibility to monitor the legality of the actions of government is himself monitored and dependent on the one he has to monitor, what guarantor is he?
Rather than “a last man standing”, he would be the first man falling and failing in controlling the legality of state action.
Tonio BorgTonio Borg is a former European commissioner and deputy prime minister. He is also a visiting professor at the Faculty of Laws at the University of Malta.