The justice minister warned an opposition MP to mind his language when criticising Victoria Buttigieg for effectively acquitting two lawyers for trying to bribe a journalist, instead of securing their conviction. He mumbled something about the independence of institutions, which is nice.
Except no one is suggesting the attorney general should not be independent. The outrage was because, apart from her independence, some people also expect the AG to be competent and loyal to law-abiding citizens.
No, minister. The opposition should not shut up about the AG’s mess, and neither should we, and neither should you. No one, except a united parliament, can fire her, which means we can’t be circumspect about telling her when it’s time to go.
You see, the disasters we know about are very likely to be the tip of the iceberg. A devious AG can get away with a lot before having, in extremis, to embarrass themselves in open court like Buttigieg did when she wiped way an attempted murder charge against it-Topo in spite of evidence that he shot at police officers who interrupted him while robbing a bank. Or, in this case, when she indicted lawyers who confirmed handing a journalist a wad of cash (claiming they thought that was normal behaviour) with the wrong crime, which led to their acquittal.
These two episodes are grotesque in having occurred entirely in the public eye. There’s a lot that happens behind closed doors. I remind you of evidence given to an incredibly frustrated board of inquiry by police officers who needed to explain why they didn’t raid Nexia BT’s computer servers when evidence emerged that the firm had set up offshore accounts for Konrad Mizzi, Keith Schembri and the new owner of Egrant. In a file that would have never seen the light of day had a journalist not been killed, then AG Peter Grech told the police not to raid the computers because the action would have been too intrusive.
In silence, in secret, fully expecting never to be held accountable, Grech (knowingly or not) helped a firm that (allegedly) set up structures for politicians to hide bribes, cover up their tracks and avoid justice.
Who knows how many other secrets are protected by the inherent opacity of the AG’s office? Consider, for example, her exclusive power to decide who gets to be prosecuted and who doesn’t for major crimes. In principle, our chief prosecutor must prosecute anyone against whom there is sufficient evidence to secure a conviction. In practice, if they decide not to prosecute someone in spite of the evidence against them there’s nothing much anyone can do about it.
When the Venice Commission was reviewing this problem, they insisted with the government that the law should allow one to complain in a court of law when the AG decides not to prosecute in spite of evidence. Like almost all the so-called rule of law reforms the government introduced, they set up a judicial review process which is practically useless.
Firstly, only someone who can show they are the victim of the alleged crime has a right to complain. With a minor unworkable exception, discussed later, this limitation means that, on most crimes, no one is entitled to challenge a decision not to prosecute. Many crimes victimise everyone in a general sense.
Consider the attempt to bribe a Times of Malta journalist. We’re all victims of an attempt by Yorgen Fenech to have this newspaper make him look good in our eyes. But none of us would have a legal standing to complain if the AG decided not to prosecute the people he hired to pay the bribe. When everyone is a victim, nobody really is.
How does a victim find out the AG has decided not to prosecute an alleged perpetrator?- Manuel Delia
Worse still, how does a victim find out the AG has decided not to prosecute an alleged perpetrator? It’s not like the AG informs them. On the contrary, any investigation or inquiry, any recommendation to the AG, even the fact that the recommendation has been made at all and what the AG decides to do or not to do about it, are state secrets. Which makes the law giving you the right to challenge what you don’t know utterly useless.
We complained to the Venice Commission that no one is a victim of corruption (because everybody is), so this law would be useless to challenge decisions not to prosecute, say, Mizzi and Schembri.
The government introduced another useless law saying the ombudsman and a few other officials can ask for judicial review of a decision by the AG not to prosecute cases of corruption.
But how would the ombudsman learn of an AG’s decision not to prosecute if the process is secret? And whatever someone like Repubblika might tell the ombudsman, the person in office is only ever likely to go to court on the basis of evidence they are directly aware of. When is that ever going to happen if the ombudsman and similar offices are expressly bound by law to stop their investigations once it becomes clear that a crime might have occurred and the matter goes to... yep, the AG?
The government congratulates itself for having introduced another two reforms concerning the AG’s office. The first is the long-awaited separation of the formerly contradictory but combined roles of counsel to the government and chief prosecutor.
When we tried to excuse Grech for his constant state of paralysis, we used to ask how could we expect a lawyer to prosecute their own clients? Now the role has been separated. Technically the government is no longer Buttigieg’s client. But, look at her, she still acts as if they were her masters and she their servant.
It’s one thing to change a law. Changing the culture is altogether different.
The other reform was to hand over prosecutions from the police to the AG’s office, ostensibly to professionalise prosecutions because police officers are not trained litigants but investigators. On paper, that sounds ideal. In practice, we’re slipping into chaos. Most police officers made up for their lack of formal training with diligence, commitment, passion and experience. In their place, a chaotic, incompetent, barely interested prosecution service is making a dog’s breakfast of the judicial system.
While the justice minister asks us to shut up about it, the wolves never had it so good.