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The State Advocate Act

by Jacob Magro – Trainee Advocate

On the 26th of July, 2019, Legal Notice No. 174 brought into force the provisions of the State Advocate Act (Act No. XXV of 2019).

The main scope of this newly enacted piece of legislation is to split the Attorney General’s dual role as prosecutor general before the criminal court and as legal adviser to the government.

In fact, this legal reform was implemented in an effort to address the various shortcomings pinpointed by the Council of Europe’s Venice Commission Report, which was published earlier this year. Among the various critical observations made, the Venice Commission had questioned the various roles assumed by the Attorney General in Malta and recommended the separation of the latter’s function as legal adviser to the Government from that of public prosecutor.

For this aim, the newly set-up office of State Advocate, constitutionally recognised under Article 91A of Malta’s Constitution, shall from now on handle all civil functions previously vested in the office of the Attorney General, including the latter’s previous role as chief adviser to the government in matters of law and legal opinion. The appointed State Advocate will also benefit from the entrenched constitutional safeguards which protect the Attorney General and the members of the Maltese Judiciary, including security of tenure and the requirement of a two-thirds parliamentary majority in order to be removed from office.

As regards the appointment of the State Advocate, the method shall be the same as that used in the selection of judges for EU institutions, whereby there will be an open call for applicants who would eventually appear before a panel of experts, namely; the Appointment Commission. This Commission shall consist of a Chairperson and not less than two and not more than four members to be composed of persons who in the Justice Minister.s 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 would then make its recommendations to the Prime Minister, who would in turn have the final say on whether or not to take on board the Commission.s advice.

The Attorney General’s office, on the other hand, will now be focusing exclusively on criminal prosecutions. Its powers have been widened to the extent that the Attorney General can now demand the Police to investigate any crime, to ask for information on the state of investigations to the Police and to demand the Police to issue any charges for any crime.

The Council of Europe’s Venice Commission Report had also pointed-out that the person who investigates criminal offences and the person who actually decides whether a person shall be prosecuted or not should be distinct. Today, in Malta, it is still the Police who investigate offences, decide whether to prosecute and effectively prosecute offences before the Court of Magistrates.

In this light, the newly enacted Act endeavours to do away with this antiquated practice, and, subject to necessary transitory measures, envisages a system whereby the prosecution of crimes liable to the punishment of imprisonment for a period exceeding two years, will eventually be conducted by the office of the Attorney General rather than by the Police. This will allow the Police to primarily focus on criminal investigations which will hopefully result in more successful criminal prosecutions in court. It is however to be pointed out that the Attorney General shall still be vested with the power to delegate its prosecutorial functions to the Police or to any other public authority having prosecution powers.

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