The new State Advocate Bill, which is currently being debated in Parliament, is “yet another classic example of how legislation should never be drafted” and is a “parody of the December 2018 Venice Commission report,” former Faculty of Laws Dean Kevin Aquilina wrote in a scathing paper about the bill.
In a paper published in Għaqda Studenti tal-Ligi’s Online Law Journal, Aquilina said that the Bill “leaves very much to be desired”.
“It has conceptual flaws. It is shabbily drafted. It is a parody of the December 2018 Venice Commission’s Report. It flies in the face of established constitutional doctrines. It is legislative drafting mediocrity at its best. In sum, it is yet another classic example of how legislation should never be drafted,” he wrote.
Aquilina noted eight significant points of criticism about the Bill, but dedicated the bulk of his analysis in comparing the Bill with the Venice Commission Report, a comparison which, he said, reveals “inconsistencies” between both documents “which indicate that the government is in bad faith when it claims it is implementing the Venice Commission Report and complying with its international law obligations.”
He noted, firstly, that while the Bill addresses one of the conflicting roles that the Attorney General holds – that of prosecutor and legal advisor to the government – it does not address the Commission’s criticism of the Attorney General being the chair of the Financial Intelligence Analysis Unit (FIAU).
While the Venice Commission had criticised the Attorney General’s “absolute and unfettered discretion in deciding upon the exercise to institute, undertake and discontinue criminal proceedings,” the new Bill, rather than allowing the judicial review of the Attorney General’s decision, the Bill instead increases the powers of the Attorney General and concentrates more power in his hands, Aquilina wrote.
“This is in line with the Prime Minister’s current autocratic concentration of powers heavily criticised by the Venice Commission report.”
Aquilina quoted the Commission report, which noted that concentration of power in the hands of the Prime Minister and the need for the system of checks and balances to be reinforced, and said that the Bill goes in the opposite direction of what the Venice Commission noted and deviates from accepted international practice in leaving the appointment of the Attorney General in the hands of the Prime Minister.
The former Dean also noted that a number of recommendations that the Venice Commission put forward had seemingly fallen on deaf ears and had not been included within the Bill.
“The government seems to have no difficulty with breaching the rule of law,” Aquilina said before adding that in ignoring the recommendations of the Venice Commission, “the only legitimate conclusion that one can arrive at is that the government is deliberately acting in bad faith.”
Aquilina also listed various other points of criticism, noting that it breaches the separation of powers doctrine and recourses to “unorthodox baffling nomenclature”.
He noted that there were legislative drafting inaccuracies; confusing terminology used in the official press release, wherein the State Advocate is thrice referred to as the State Attorney; a continued proliferation of appointment committees; and that the constitutional provision related to the establishment of an office of State Advocate is not being entrenched in the Constitution.
“Clearly Cabinet has approved a Bill proposed to it by the Justice Minister which is half-baked and ill-conceived, and has been drafted hastily, shabbily, superficially, and without enough thought and research put into it,” Aquilina concluded.
He noted that the Bill places Malta at loggerheads with the Council of Europe, the European Court of Human Rights and the European Union and questioned whether the values enshrined in the Bill be enacted into law or whether the European values cherished by these three international institutions “but despised by the Maltese government” be enacted into law.
“The Government is purposefully dragging its feet to implement the Venice Commission report and, five months after the publication of this report, it has attempted to address only one topic – quite deficiently – of the report,” he wrote.
“This does not augur well for the respect of the rule of law in Malta. Indeed, there is a constitutional rule of law crisis in Malta.”