Malta: Strengthening Our Institutions

Last Updated: 17 April 2019
Article by Max Ganado

The need to split the Attorney General's office and function into at least two different constitutional functions of the same calibre, with a Director of Public Prosecutions having independence and security of tenure, has long been suggested.

What is obvious, even to people untrained in law, never seems to be obvious to politicians in power, even when there are evident legal, ethical and social reasons for it. Politicians seem to be inspired when in Opposition and quickly forget when in government.

This has been the sorry story since before Independence. Indeed, my grandfather Judge Edgar Ganado was the Acting Director of Public Prosecutions and when a minister in Malta's self-government raised a case on which he was acting with him he flatly rejected that intrusion. When the same minister tried again he resigned. It is a serious issue when a minister fails to respect the boundaries required by the law and ethics – as recently happened in a similar case in Canada.

Why the Nationalist Party in government never implemented the idea – and so many others – is mind-boggling. Why it took a foreign organisation to get the present government to move, when so many local competent persons have been making this and other valid suggestions for years, is nothing other than demoralising for our national pride. We too are capable of proposing the correct things to do (see for example an article I wrote in the Times, July 12, 2013 'Issues in Justice Reform').

Unfortunately, politicians often disregard what may seem inconvenient although necessary for our national integrity. They seem only to think of the immediate political agendas and contexts. The rest of us have to bear weak institutions and laws which regularly breach the Constitution and our human rights, when it is obvious it should not be so, and the reputational consequences so detrimental to us all. To be called "cowards" by foreign institutions is just too much, when it costs nothing to act correctly without external prompting on these self-evident matters.

The government is finally going to act on some of these obvious issues, and well done for that, but there needs to be direct, clear and immediate action to pass on the right message instead of a convoluted one.

We cannot afford to be ambiguous in our actions on public interest matters anymore. The office of Director of Public Prosecutions must be designed to work. It must be entrenched into a position of credibility and have a clear mandate which is independent and secure. Members of the executive must be expressly prohibited from trying to influence such an officer.

Let us be clear and direct, as subtlety, and assuming everyone knows the basic rules of behaviour, evidently does not work for people who do not want to understand. Breach of such a rule needs to have serious and harsh consequences for the politician.

Let us not make too much of the power of the Prime Minister to choose the incumbent; but the PM knows the very obvious: that whoever he appoints cannot reflect a sham, cannot be a "person of trust" or a coward. This decision must be taken – and appear to be taken – in the interest of the community protected by a constitutional principle relating to checks and balances in a democratic system.

His office must be given sufficient resources and support. The lack of them would speak volumes. We are now all used to the strategy: when governments do not want a law to reach its goals they make sure they do not provide sufficient resources or powers, or subject decisions to a minister's discretion. The laws against corruption and injustices are prime examples.

When the draft laws are produced it is critical they be properly reviewed because we have now reached a stage where, if not done correctly, the effects would be very far-reaching due to many things which have happened in the past, some of which have not been addressed.

The media needs to give the process a chance. If it reads agendas into early drafts, perhaps reflecting weak ideas which could be corrected through discussion, the harm created by such early and highly publicised impressions, including misunderstandings, would be irreversible. Instead of an intelligent debate we would see the dominance of incorrect perceptions.

Those of us who can contribute intelligently, and with expertise, to this exercise (and there are many) need to speak up. While pointing out what is good, they must clearly call out deficiencies and weaknesses in proposals. If the government wishes to promote the common good it will give ample space for such persons to share their knowledge and experience and give constructive proposals due attention.

We have reached the point where we need to go back to basic competencies, use our resources as a country well, disregard the extreme effects of the political division, ignore the social media's hate and manipulation, see irrelevant red herrings for what they are and work together on these important institutional solutions to strengthen our justice system.

They must be properly designed to work and to last for the benefit of the entire population and future generations – not for the next election, not for a part of our society and not for a group of persons who can benefit from weak institutions.

Max Ganado is senior partner at GANADO Advocates.

This article was first published in the Times of Malta, 14 April 2019.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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