The Attorney General replies on Egrant inquiry criticism

In an article entitled ‘Attorney General acted ‘irresponsibly’ on Egrant Inquiry – Vincent Degaetano’, the Attorney General is accused of:

1. Having been irresponsible in granting a copy of the Egrant inquiry report to the Prime Minister within a day from when he received it;
2. Being ‘disingenuous’ in stating that his function is to prosecute and not to investigate;
3. Having discriminated ’on political grounds’ when refusing to give a copy of the full inquiry report to the Leader of the Opposition.

1. ‘Irresponsible’ behaviour

This accusation is based on the premise that the report should not have been given to the Prime Minister or at least not without allowing for a complete ‘trawling’ of the report to decide whether more investigation was warranted. This, given that the report includes information leading to suspicion on persons perceived to be close to the prime minister or to his office.

This argument ignores the political situation at the time when the report was concluded The prime minister had pledged to leave office if there would be anything in the report which pointed to the truth of the allegations made about him and his family and upon news of conclusion of the report the prime minister wrote through his lawyer to demand that it be published.

It is now being suggested that the Attorney General should have ignored all this and should have treated the report as any other inquiry report but the consequence of that would have been to leave the highest executive office in a state of constitutional uncertainty. It was clear that in such a situation it was important for the country that the prime minister should not be left without the full evidential basis for the conclusions of the inquiry. That evidential basis includes both evidence which he would be likely to view neutrally and evidence which he would not.be likely to view in such manner. That is the only way he could really be put in a position to decide on his future.

Irrespective of whether, with hindsight, it was wise or appropriate to place the burden as to whether a prime minister should continue in office on a magistrate or on the Attorney General, the fact remains that it was that question which was the central issue once the report was concluded. That issue had to be given priority and had to be addressed albeit in a manner that would also as much as possible safeguard the integrity of the investigation and of others to follow. Hence, the compromise of publishing the main conclusions but not authorising the publication of the report whilst releasing a copy to the prime minister.

It may be noted that even the Constitutional Court judgment of the 16 December 2019 appears to have treated the inquiry report as one of mainly political relevance. Otherwise, the issue of access to information by the Leader of the Opposition would have had no place in the judgment. The judgment never raised the issue of any alleged ‘investigative powers’ being disregarded and, in fact, it denied the Leader of the Opposition’s claim that the report should be published and declared that it agreed with the Attorney General that the report should not be published. The Constitutional Court ordered that a copy be given to the Leader of the Opposition who had to be trusted to use the report and the information given to him  “ in a careful and responsible manner”. That trust resulted in the report and all the personal and banking and confidential information contained therein being thrown to the wind and being put on the internet to be accessible from all over the world in less than 24 hours. This proved that the AG’s argument throughout the case that handing over the report to the Leader of the Opposition was tantamount to publication was correct.

2. ‘Investigative functions’ of the Attorney General

The debate on whether the Office of the Attorney General has ‘investigative functions’ verges on the academic and even the article itself acknowledges that the investigative powers of the Office of the Attorney General are ‘limited’. One must not lose sight of the fact that the term ‘investigation’ can lend itself to a very wide legal meaning and can cover any situation where a public authority is entitled to enquire about facts.

However, unlike the police, customs and other law enforcement entities, the Office of the Attorney General is not a law enforcement organisation. It cannot order law enforcement institutions on how to perform their tasks and it cannot order coercive investigative measures. The preservation of public order, the prevention, detection and investigation of offences and the commencement of prosecution (with some exceptions) are the legal duties of the police.

Prosecutors from the Office of the Attorney General can, and often do, assist in investigations but this does not mean that they have investigative powers.

With the division of the former roles of the Office of the Attorney General, it is now planned that the office will assume responsibility to take the decision to prosecute in all but the less serious cases.

The Attorney General can also be said to perform a general supervisory role on inquests and he may also return the record upon conclusion of the inquest when he considers that any further investigation is to be held. This does not, however, make the Office of the Attorney General an investigating or a law enforcement authority. It is a prosecution authority which assists in investigations.

3. Political discrimination

As regards the Attorney General having discriminated on political grounds it must be pointed out that the Constitutional Court’s judgment of 16 December 2019 does not find discrimination on grounds of ‘political opinion’ which is the ground of discrimination found in Article 45 of the Constitution and in Article 14 of the European Convention on Human Rights, but finds  discrimination because of “the political implication of the Office of the Leader of the Opposition”. At most this can be seen as consequential and indirect ‘discrimination’ resulting from a distinction between the different nature of political offices but is not discrimination on grounds of political opinion as stipulated in the law. The different nature of political offices is in turn provided by the Constitution itself but in this case the inquiry report did not only relate to an office but to specific allegations about the politician holding that office, who was therefore certainly in a different position from holders of other political offices.

Editorial note:

The interview with former Judge at the European Court of Human Rights, Vincent De Gaetano, did not constitute misrepresentation of Attorney General Peter Grech’s acts or omissions, it does not defame him and does not intrude into his private life – the grounds on which a Right of Reply is merited, according to law. This has been communicated to the government’s Department of Information which sent the Right of Reply by the Attorney General to The Shift. Yet, we chose to carry the piece submitted because it speaks volumes about his conduct.

Indeed, the Attorney General’s ‘reply’ confirms all the main and basic facts emerging from the interview with the former Chief Justice, namely (1) that he (the Attorney General) simply bounced the entire procès-verbal into the Prime Minister’s lap for essentially political reasons without bothering to read it before doing so; (2) that he failed to exercise his limited investigative functions; and (3) that he discriminated (with respect to the Opposition Leader) with the basis of that discrimination being political.

The rest of the ‘reply’ is devoted to arguments to rebut the Chief Justice’s opinion on those facts – as the Attorney General should know, facts can be proved or disproved, but not opinions.

In short, the Attorney General gave full faith and credit to the prime minister on the day the procès-verbal was sent to him by the inquiring magistrate, even though by that time it should have been clear to anyone with a minimum of intelligence that the steps to Castille were not lined with lilies and roses; and he persisted in refusing to give a copy of the same document to the prime minister’s counterpart on the other side of the House of Representatives. Whether this was direct or ‘indirect’ discrimination on political ground is neither here nor there.

Finally, we remind the Attorney General that the grounds of discrimination mentioned in Article 14 of the European Convention on Human Rights, to which he refers in the last paragraph of his ‘reply’, are not exhaustive grounds (as they are in Art. 45(3) of the Constitution) but merely exemplative – Article 14 provides that the fundamental rights and freedoms set out in the Convention shall be secured to every person without discrimination “on any ground”.

Read the full interview with Vincent De Gaetano here.