Criminal lawyer MPs: can they avoid conflicting roles?

Online commenting expressing dismay or surprise at the decision by the Nationalist Party’s spokesperson for Home Affairs Joe Giglio to defend a person accused of corruption in a racket allegedly involving a Labour Party minister, has little to do with the lawyer himself but it does raise a broader and more complex question.

After all, Giglio is hardly the first practising criminal lawyer who also served as a member of the House of Representatives. We’ve seen the likes of Manuel Mallia, Franco Debono, José Herrera and Jason Azzopardi, to mention just some of the recent ones. In the past, we had Guido de Marco, Joe Brincat, John Attard Montalto, and Ugo Mifsud Bonnici among the more prominent practising criminal lawyers who were also MPs.

The question is whether it is possible for members of the House of Representatives who also work as criminal defence lawyers to serve both their roles without compromising either, especially when we consider that in the past, there was a provision in Malta’s laws that aimed to address this issue, but it has since been repealed.

An example that highlights the system

Giglio’s work outside parliament, the most recent case in point, was first thrust into the spotlight during an appearance on the radio show ‘Malta’s Heart’, when he referred to information about the Egrant whistleblower, Maria Efimova, which he acquired from his time as the former lawyer for Pilatus Bank. During that interview, he expressed serious reservations about her credibility.

His statement was picked up by anti-corruption NGO Repubblika, which responded by calling out Giglio’s conflict of interest as a criminal lawyer and MP. Opposition leader Bernard Grech had to clarify that Giglio’s doubts do not reflect the party’s position.

Giglio is also the defence lawyer of Raul Antonio Pace, a Transport Malta official who stands accused of helping learner drivers cheat in their driving theory test. When asked about his decision to accept this latest brief, Giglio replied by saying he saw nothing untoward.

And technically, there is nothing untoward, but it was not always so.

Changes in the Code of Organisation and Civil Procedure

Up until 1977, according to Article 79(2) of the Code of Organization and Civil Procedure, a Member of Parliament was precluded from exercising his profession as an advocate in several cases, for example, in lawsuits in which the State was a party or in criminal trials where the accused was a public official.

The reason behind this appears to have been – at least at first – that it was contradictory for an MP who scrutinised and approved legislation to then challenge that legislation or its validity in, for example, constitutional proceedings.

The argument was then extended to cover a number of criminal offences where the State was seen as having a more immediate interest in the criminal proceedings, the argument presumably being that a member of one organ of the State – the Legislature – should not be seen to be taking sides against the State.

This Article was eventually challenged in court in the case The Police v. Carmelo known as Charles Ellul Sullivan et al., and in 1989 the Constitutional Court concluded at the time that since the number of lawyers who exercised their profession in lawsuits of a constitutional nature was limited in number, the said provision was in breach of the fair hearing guarantees afforded to those involved in such litigation.

The restriction on MPs exercising their profession as lawyers was removed in 1995 by means of Act XXIV and by 2007 Act 79(2) of the Code of Organisation and Civil Procedure was substituted altogether. It now deals with lawyers’ warrants.

Are we still short of lawyers?

Today, the criminal bar is not as limited and restricted as it once was, and Malta has no shortage of lawyers practising before the courts of constitutional jurisdiction in human rights and other types of cases.

According to data published in the latest EU Justice scoreboard, Malta has the fourth-highest number of lawyers per 100,000 inhabitants, with almost 350 lawyers per 100,000 inhabitants.

An analysis by MaltaToday in March also found that the legal profession still dominates the Maltese political landscape to the extent that in the last general elections, nearly a third of candidates of both major parties were lawyers or notaries.

Therefore, is it worth considering the re-introducion of some provisions to protect the full independent exercise of an MP’s functions? How do the contrasting roles reflect the broader concerns expressed by international institutions about our multi-tasking, part-time parliamentarians?

This is the context within which we should perhaps be asking questions. Questions that go beyond merely pointing fingers at individuals for exercising their profession, but, rather, questions that assess the system within which they operate in the first place.