Evarist Bartolo | Sunday, 11 January 2009

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The politics of ‘nolle prosequi’

I can understand the deep frustration felt by police officers who do their duty and operate in our very difficult environment of a small society where personal relations are stronger than institutional ones, carry out their investigations, dig up the facts but then cannot present their case in court as the Attorney General’s office frequently tells them: “Nulle prosequi”, do not proceed.
The ‘nulle prosequi’ is a power granted to the Attorney General by the Constitution to decide who should go to court and who should not. The Attorney General has the power to order the police not to institute criminal proceedings against a person.
I believe we need to overhaul the operational set up of the Attorney General’s Office as at present it has a conflict of interest in certain sensitive situations when it has to give legal advice about prosecuting people that might embarrass the party in government. Our Constitution states that the Attorney General shall not be subject to the direction or control of any other person or authority. The Attorney General is above the Commissioner of Police, above the inquiring magistrate, and above the duty magistrate. The Constitution does not allow the Attorney General to be the legal adviser to the government or to chair government boards and it makes sense, because this impinges on the independence and impartiality of his office. These are all very nice words, but not enough to guarantee the autonomy of the Office.
The Office is financed by taxpayers’ money controlled by the government. The Office’s staff are recruited and promoted by the government of the day. So the office has no operational autonomy and independence. If we really want to fight corruption and reduce it, introduce fair governance and the rule of law in substance and not just on paper we must take all the necessary steps to have the Attorney General’s Office removed from any sort of covert or overt political control by the party in government. We cannot have this kind of Office play the role of legal adviser to the police who want to prosecute and serve as judge in the same case, exonerating the investigated persons without giving the police the opportunity to try them in a court of law.
It is not the first time that police officers are asked to investigate cases dealing with corruption where a government MP or persons well connected to ministers and parliamentary secretaries are involved (some cases that come to mind include the Jeffrey Pullicino Orlando Mistra affair, the recent ICT MCAST tender saga, attempts by lawyers and a priest to buy the silence of the family of the girl in the rape case instituted against the Said brothers in Gozo) and the police are directed not to proceed further in court on the advice of the Attorney General’s office when this office falls under the operational control of the government of the day. This is unacceptable and should not be allowed to go on. If we really want the rule of law and good and fair governance we cannot have the Attorney General’s Office under the operational control of the government of the day.
This Office should have both the Constitutional and operational set up to guarantee its independent and autonomous role to enable it to operate – and be seen to operate – fairly and without giving preferential treatment to persons who enjoy immunity and are above the law simply because they are well connected to the government of the day and their involvement in illegal acts might embarrass the government if simply taken to court, let alone if proven guilty.

Why are we absent?
Last July Prime Minister Gonzi participated in the Paris summit for the Mediterranean called by French (and then also EU) President Nicolas Sarkozy. One of the commitments taken there was to set up the Euro-Mediterranean University (EMUNI University), a cooperation network of partner institutions and existing universities from the Euro-Med region.
So far, 115 universities, networks of universities, higher-education and research institutions from 32 European and Mediterranean countries have come together to set up EMUNI University. Last November the European Commission expressed its support for the EMUNI University and for its study and research programs in six priority fields of the Union for the Mediterranean: environmental studies, maritime and land highways, civil protection, use of alternative energies, higher-education and research, business development and economic studies. Funds are also being provided by Gulf and Arab countries and institutions.
The Gonzi government not only took no initiative to have the EMUNI University’s seat in Malta, but has so far done nothing to encourage the University of Malta to participate in the EMUNI University which has a Maltese running it. Last November Prof. Dr Joseph Mifsud was unanimously elected as the first President of EMUNI University for the coming five years.
EMUNI University will this year focus on academic activities, such as: performing four post-graduate programs “EMUNI label”, doctoral research seminars, different short educational programs and the publication of a scientific magazine. EMUNI University will also be organising summer school 2009 in five different locations of the Euro-Mediterranean region.
Last Monday was the closing date for students and universities who want to take part in this summer school. Our students and University will be missing this opportunity.

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