The state advocate bill no. 83 of 2019 : acting in breach of Malta’s international obligations

Abstract

On 2 May 2019, government published Bill No. 83 of 2019, a bill proposing the constitution of the Office of State Advocate and the separation of functions of state prosecutor from those of legal advisor to government. According to the Bill, the ‘Objects and Reasons of this Bill are to continue implementing reform in the justice sector and particularly to make provision for the division of the prosecution and Government advisory roles of the Attorney General by transferring the government advisory roles to a new office to be called the Office of the State Advocate and to make provision for matters connected with the said reform’. Notwithstanding its apparent pious intentions, 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. This short paper argues vehemently against the adoption by Parliament of this Bill as it runs counter to the doctrines of the separation of powers and the rule of law, makes a parody of the said Venice Commission report which it prospects to give effect to, and is in breach of Malta’s international obligations assumed in terms of its membership of the Council of Europe, the European Convention for the Protection of Human Rights and Fundamental Freedoms, and of EU Law.