Posted by: kevin.aquilina
in Kevin Aquilina´s Category on Mar 03, 2011
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In this brief note, I want to update the readers of statecareandmore.eu on the developments taking place in the House of Representatives with regard to re-codification and consolidation of Maltese Law.
Bill No 57 entitled the Permanent Commission Against Corruption (Amendment) Bill is intended to amend the Commission for Corruption Act, chapter 326 of the Laws of Malta. It was published in The Malta Government Gazette on 8 October 2010. Amongst other things, this Bill proposes the appointment of a Special Prosecutor. After having read this provision I conclude that the term ‘Prosecutor’ is nothing but a legal misnomer and the Special Prosecutor is not a Prosecutor at all, at least as understood in ordinary parlance.
I understand a Prosecutor to be that public officer who charges persons before a court of criminal jurisdiction. One may add to this conception of the term any person who charges another or other person/s before an administrative authority which can inflict administrative sanctions of some sort. But the Special Prosecutor is none of this sort. So what is exactly his/her role and what makes him or her special when compared to other Prosecutors?
The Executive Police enjoy certain powers which the Special Prosecutor does not have in his/her arsenal: the Police can arrest a person, they can search and seize property, they can charge persons in court, etc. But the Special Prosecutor has none such powers. The vexata questio thus arises: what makes the Special Prosecutor special when compared to the ordinary prosecutors – the Police and the Attorney General?
It appears that the Special Prosecutor is special because s/he does not carry out the duties of a prosecutor. This seems to be the distinguishing feature. What the Special Prosecutor does is that s/he:
(a) makes a report to the Executive Police on any act or omission which, if proved, could constitute a corrupt practice but it is the Executive Police who shall make such investigations on such report and proceed thereon in accordance with the provisions of the Criminal Code or any other law applicable thereto;
(b) where the Commissioner of Police fails to act on any such report, the Special Prosecutor is entitled to challenge the Commissioner before the Court of Magistrates but does not have the power to carry out the investigation him/herself;
(c) the Special Prosecutor is entitled to make a report in accordance with article 546 of the Criminal Code on any matter relating to a corrupt practice but once again s/he does not enjoy any investigating powers;
(d) the Special Prosecutor has in any prosecution on any corrupt practice the same rights as those accorded to the injured party. But should the Special Prosecutor be considered on the same footing as an injured parties? Is s/he not supra partes and should s/he not enjoy an independent and impartial status when compared to the rights belonging to the other parties – the Prosecution (the Police and the Attorney General), the Accused and the Victim? Should not the functions of a Special Prosecutor be more akin to those of an Inquiring Magistrate?
The word ‘prosecutor’ as used in the Bill is in fact a misnomer for, as seen from the above listed functions, the Special Prosecutor does not carry out any prosecutorial duties. This is perhaps what makes his office ‘special’. I find the powers of the Special Prosecutor lacking. I would have preferred if the following measures were taken instead:
(1) The Special Prosecutor should be an independent judicial officer – a Judge or Magistrate – who enjoys security of tenure and is independent of the Government, the Police and the Commission against Corruption.
(2) During his/her tenure of office of Special Prosecutor, the appointed Judge or Magistrate shall not carry out any other judicial function.
(3) The Special Prosecutor should be appointed by the President of Malta on the advice of the Chief Justice for a period of five years and should be chosen from amongst Magistrates. Such term of office may be renewed as aforesaid by a further one term only.
(4) The appointed Magistrate may be removed from Special Prosecutor by a two-thirds majority of the House of Representatives on the conjoint recommendation of the Commission for the Administration of Justice and the Constitutional Court.
(5) The Commission against Corruption should be done away with and its powers vested in the Special Prosecutor.
(6) The Commissioner of Police shall take orders from the Special Prosecutor when the latter is investigating corruption offences.
(7) Where an act of corruption is proved, the accused shall be condemned by the appropriate court to the appropriate punishment in terms of law. The accused shall also be condemned to pay to the Accountant General such amount of money which is lost in terms of revenue to Government as the court of criminal jurisdiction may liquidate by way of compensation.
(8) Any money obtained through an act of corruption shall be forfeited in favour of the Government. The same procedure shall apply to relatives and friends of the person convicted to whom the latter might have transferred or donated his or her assets.
(9) Until these properties are forfeited, the Special Prosecutor may request the court hearing the corruption case to issue an order to attach all the said money. In certain cases, property should also be attached and forfeited.
(10) All corruption cases shall be prosecuted before all courts of criminal jurisdiction by the Special Prosecutor. The Attorney General and the Police shall provide their assistance to the Special Prosecutor in such cases.
(11) Squandering of public money by state officials shall be considered a criminal offence. In such cases the Special Prosecutor should be empowered to institute criminal action against any public official, including the President of Malta, the Prime Minister, Ministers, Parliamentary Secretaries, Permanent Secretaries and all public officers and employees of public corporations, government foundations, government owned companies, and agencies of the Government. No person shall enjoy immunity from such an action.
(12) The burden of proof to demonstrate that the money or property in question has not been obtained through an act of corruption shall rest on the accused.
(13) The Special Prosecutor shall have the right to request any information from banks, Government (central and local) and other institutions which might assist in providing evidence for the prosecution of the offence of corruption. These institutions shall be required by law to provide such information on pain of criminal prosecution being instituted against those persons who do not collaborate in achieving the ends of justice.
(14) Offences of corruption shall not be time-barred.
These are only a few ideas which can be adopted by the new law. It is not the intention of this short contribution to carry out a detailed study of how the law should be improved. However there is still time to learn from experience gained in foreign jurisdictions in dealing with the scourge of corruption. One augurs that our Members of Parliament will look up these foreign laws with a view to ameliorating the present Bill which, in my opinion, leaves much to be desired in its current state in so far as the Special Prosecutor is concerned.
1. Object and Reasons of the Bill
Clause 64 of Bill No 45, the Various Laws (Criminal Matters) (Amendment) Act, 2010 – published in The Malta Government Gazette of 12 February 2010 – is proposing the addition of a new provision to the Arms Act. It deals with toys in the shape of guns. The new provision, article 55A, if adopted by the House of Representatives, will read as follows:
The House of Representatives will soon start to debate Bill No. 41, a Bill to amend the Arbitration Act and the Mediation Act. The Bill was published in The Malta Government Gazette on 1 December 2009. The amendments to the Mediation Act are prompted by E.U. exigencies intended to transpose into Maltese law the provisions of Council Directive 2008/52/EC of 21 May 2008 regarding mediation in cross-border civil and commercial matters.
Q1. These past few months have been characterised by a number of censorship sagas, mainly against the play 'Stitching' and the banning of a university newspaper. The former was at the hands of the Board of Classification for theatrical productions. Can you explain which Maltese law controls this board and the jurisdiction it has over theatre and cinema?
1. Introduction
When I came to choose the topic of this oration I was advised to select a theme which would be relevant to an audience of law and theology graduands. Of course, there are diverse aspects where law and theology converge. I still remember those days where as a law student I studied Philosophy of Law and came across the great contribution which theologians such as St. Augustine of Hippo and St. Thomas Aquinas gave to the development of the law. So the topic of this oration contains both theological and legal elements: it concerns respect for human dignity and the law. There is no doubt that the Catholic Church’s teachings on human dignity have been a catalyst for the development of the law in this area. In this Oration, I will reflect upon two main points: the contribution of the Catholic Church’s myriad teachings on human dignity and how the latter concept has been adopted as an essential feature of the law – whether national, regional or international.
Anthony Neilson’s play Stitching is a disturbing play not only with regard to the singularity of its offensive parts which, inter alia, target vulnerable persons (women, children and holocaust victims) but more so when these offensive parts are taken together as a whole: in such case they constitute a persistent and consistent attack on the respect for human dignity.
Indeed, the leit motif of this play consists not only in the individual shocking, disturbing and frequently perverse behaviour which go beyond the European Court of Human Rights standard in Handyside v. United Kingdom as to what ought to be reasonably acceptable in a civilised society but also in its continuous debasement of human dignity throughout the whole play. It is this very latter aspect that makes this play unfit for theatrical performance.
1. Introduction
As on 13 August 2009, practically all the provisions of the Criminal Code (Amendment) Act, 2002 have entered into force – even if at distinct and separate intervals. However, there still remain certain provisions of article 74 of the Criminal Code (Amendment) Act, 2002 amending the Criminal Code which are not yet in force namely:
