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Proposed law on State Advocate ‘falls short of Venice Commission requirements’

Council of Europe Special Rapporteur makes public statement as Bill was going through its second reading in Parliament.

As Parliament was debating a Bill on Tuesday to establish the Office of the State Advocate, which the government described as “splitting the current dual role of the Attorney General”, the Council of Europe’s Special Rapporteur Pieter Omtzigt said the proposed law did not go far enough.

“From the adopted report on (the) assassination of Daphne Caruana Galizia and the Rule of Law in Malta. The proposal [AG reform bill in Malta] falls short of the Venice Commission’s recommendations in several important (aspects),” Omtzigt said.

The Bill will be creating a new role, that of State Advocate who will be taking on the advisory functions of being a lawyer to the State. The Attorney General will retain his prosecutorial roles.

In Parliament on Monday, Justice Minister Owen Bonnici said: “This is exactly what the Venice Commissioner recommended”. Omtzigt clearly disagrees.

He quoted from the report adopted by the Council of Europe’s Committee on Legal Affairs and Human Rights: “On 2 May, the Minister for Justice tabled a Bill before parliament to create a State Advocate, replacing the Attorney General as the government’s legal advisor. The office of the Attorney General would remain… to instruct the police to conduct investigations and with direct responsibility for prosecutions. The proposal falls short of the Venice Commission’s recommendations in several important respects”.

The report cites as an example the fact that the law does not state specifically that the Attorney General’s decision on prosecutions would be subject to judicial review. It adds that it seems the Attorney General would not be given responsibility for inquests currently undertaken by magistrates.

The report also notes that the Bill does not address “the Attorney General’s problematic position as Chair of the Financial Intelligence Analysis Unit (FIAU)”. This was a point also raised by the Opposition members objecting to the Bill during its second reading in Parliament on Tuesday.

PN MP Simon Busuttil went further, calling the Bill “anti-European”. He said the law did not go far enough. “If the government was proposing two separate and independent entities, then this would be a step forward. But what the government is proposing is to split those functions and control both”.

A new Board would be vetting and making recommendations, but the Board’s composition is such that it will be controlled by the government. The recommendations are also not binding.

This Bill should not have been presented in isolation, but as part of a holistic reform, Busuttil added.

Labour MP Edward Zammit Lewis defended the Bill on behalf of the government saying, “it seems that if people don’t have the ok of Simon Busuttil and Jason Azzopardi” then it’s anti-European.

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