ACT No. XXV of 2019 AN ACT to continue implementing reform in the Justice Sector (Attorney General). (attorneygeneral)

I assent.

(L.S.)

GEORGE VELLA

President

19th July, 2019

ACT No. XXV of 2019

AN ACT to continue implementing reform in the Justice Sector

(Attorney General).

BE IT ENACTED by the President, by and with the advice and

consent of the House of Representatives, in this present Parliament

assembled, and by the authority of the same, as follows

(1)

The short title of this Act is the State Advocate Act,

commencement.

2019. (2) This Act shall come into force on such date as the Minister

responsible for justice may by notice in the Gazette establish, and

different dates may be so established for different provisions and

different purposes of this Act.

(3) A notice under sub-article (2) may make such transitory

provisions, without limitation, as appear to the Minister to be

necessary or expedient in connection with the provisions thereby

brought or to be brought into force.

(1) The State Advocate shall be the Chief Legal Advisor to

the Government and shall have the judicial representation of the

Government in judicial acts and actions where the law does not

provide that such representation shall vest in some other person or

authority.

(2) In giving legal advice the State Advocate shall act in the

public interest and shall safeguard the legality of actions of the State.

(3) Where under any law the State Advocate is to act or exercise

any power in his individual judgment he shall not be subject to the

direction or control of any other person or authority.

(4) The officers of the State Advocate when acting under his

direction in anything in which he is to act in his own individual

judgment, shall have the same protection at law as if the action done or

omitted to be done were an act done or omitted to be done by the State

Advocate.

When a vacancy occurs in the office of State Advocate the

procedure for the appointment of a State Advocate shall be the

following

(a) The Minister responsible for justice shall establish an

Appointment Commission, consisting of a Chairperson and not

less than two (2) and not more than four (4) members, to be

composed of persons who in his opinion are respected and

trusted by the public and are technically qualified to examine

whether candidates for the office of State Advocate have the

appropriate qualifications and other merit and suitability

requirements to occupy the said office.

(b) The Appointment Commission shall issue a public

call for applications open to persons who have the necessary

qualifications and experience required to be appointed to the

office of State Advocate.

(c) After examining the candidates the Appointment

Commission shall submit a report to the Prime Minister through

the Minister responsible for justice expressing its views on the

eligibility, suitability and merit of the candidates. In the said

report the Commission may either limit itself to giving an

opinion on the candidates or it may rank them in order of

preference.

(d) In deciding upon his recommendation to the

President in terms of article 91A of the Constitution for the

appointment of the State Advocate the Prime Minister shall give

due consideration to the recommendations of the Appointment

Commission.

(1) There shall also be a Deputy State Advocate and other Deputy State

officers of the State Advocate, who shall exercise and perform all such Advocate

other officers.

powers, functions and duties as may be delegated or assigned to them

by the State Advocate.

(2) In the exercise and performance of the powers, functions and

duties delegated or assigned to them as aforesaid, the Deputy State

Advocate and other officers of the State Advocate shall, unless the

contrary intention appears, have the same obligations and enjoy the

same protection and privileges as are by law imposed on or given to

the State Advocate.

(3) The Office of the State Advocate is hereby designated as a

Government agency and the provisions of sub-articles (5) to (9) shall

apply to the said agency.

(4) The State Advocate may also act through such contractors as

he may from time to time appoint

Provided that such contractors shall at all times act in

accordance with such instructions as may be given to them by the State

Advocate.

(5) (a) The Office of the State Advocate shall as a Government

agency be headed by the State Advocate and shall be the medium

through which the State Advocate carries out his functions according

to law.

(b)

The said agency shall be a body corporate having a

distinct legal personality and shall be capable of entering into

contracts, of employing personnel, of acquiring, holding and disposing

of any kind of property for the purposes of its operations and of suing

and of being sued.

(c) The legal and judicial representation of the Office of the

State Advocate shall lie in the State Advocate or in any other person

who he may designate.

(d) The said agency shall enter into an agency performance

agreement with the Government whereby the funding of the agency as

well as the tasks to be addressed and achieved by it are determined

Provided that the Minister responsible for the agency shall,

subject to the provisions of any law to the contrary, be entitled to give

directions in writing to the agency and the agency and its head shall be

bound to observe such directives

Provided further that the provisions of the above proviso shall

not apply where the State Advocate is in accordance with any law to

act in accordance with his own individual judgement, in which case

the agency is to act according to the sole directions of the State

Advocate.

(6) The State Advocate and the employees of the said agency

shall abide by any Code of Ethics applicable to public officers and

shall, subject to any law to the contrary, have the same obligations

thereunder

Provided that the State Advocate shall with the concurrence of

the Minister responsible for the agency draw up service values and

Codes of Ethics in respect of the agency to supplement any public

service Code of Ethics.

(7) (a) The State Advocate shall keep proper books of account

in such manner as the Minister responsible for finance may from time

to time direct. Such accounts shall be audited by an auditor appointed

for the purpose by the State Advocate with the concurrence of the

Minister responsible for finance and shall moreover be subject to audit

by the Auditor General.

(b) The financial year of the Office of the State Advocate

shall commence on the 1st January and shall end on the 31st

December

Provided that the first financial year shall commence upon the

coming into force of this sub-article and shall end on the 31st

December of the following year.

(c) The State Advocate shall not later than six (6) weeks

after the end of each financial year present to the Minister responsible

for the agency the audited accounts together with a report on the

workings of the agency, which report shall state the manner in which

the agency has operated to fulfil its functions and its plans for the

future.

(d) The accounts and report mentioned in paragraph (c)

shall be laid on the Table of the House by the Minister not later than

six (6) weeks after its receipt, or when the House is during the period

not in session not later than the second week after the House resumes

its sittings.

(8) (a) The Prime Minister may by direction detail a public

officer for duty with the said agency for such term and under such

conditions as may be established in relation to the officer so detailed.

(b)

The Prime Minister may at any time revoke any such

direction.

(c) Where any officer is detailed for duty with the agency

such officer shall, during the time in which such direction is in force,

be under the administrative direction and control of the State

Advocate, but shall otherwise remain, and retain all rights and duties

as, a public officer, and for the purposes of any law relating to

government service pensions, service with the agency shall be deemed

to be service with the Government

Provided that no account shall be taken in assessing the

pensionable emoluments of such officer for the purposes of any law

relating to government service pensions of any allowances, bonuses or

gratuities paid to such officer by the agency in excess to what he is

entitled to as a public officer

Provided further that during the time in respect of which such

officer is so detailed to perform duties with the agency, the terms and

conditions of his service shall not be less favourable than those which

are attached to his appointment under the Government during the

period aforesaid. Such terms and conditions shall not be deemed to be

less favourable merely because they are not in all respects identical

with or superior to those enjoyed by the officer concerned at the date

of such direction, if such terms and conditions, taken as a whole, in the

opinion of the Prime Minister offer substantially equivalent or greater

benefits.

(9) Any public officer serving exclusively in the Civil,

Constitutional and Administrative Law Unit or in the Legislation Unit

of the Office of the Attorney General on the date of the coming into

force of this sub-article shall, from such date, be deemed to have been

detailed for duty with the Office of the State Advocate as a

government agency under the provisions of sub-article (8), and

thereupon the provisions of the same sub-article shall apply to such

officer who shall continue to be detailed for duty as aforesaid until

such time as the Prime Minister may revoke such direction as provided

in sub-article (8)(b)

Provided that where the Prime Minister revokes any direction

as aforesaid the officer in whose respect the direction is revoked shall

retain such grade in the public service which he held immediately

before being detailed for duty with the Office of the State Advocate as

a government agency by virtue of this article or shall occupy such

other higher grade which he would have occupied had he not been

detailed as aforesaid.

(10) On such day as may be appointed by order of the Minister

responsible for justice, the Office of the State Advocate shall take over

all employees, rights, duties, undertakings, contracts, causes, orders,

judgements, documents and working arrangements which,

immediately prior to the appointed day, shall pertain to the Office of

the Attorney General Agency and relate to the Civil, Constitutional

and Administrative Law Unit, or with the Legislation Unit of the

Office of the Attorney General Agency, in such manner and according

to such time-scale as the Minister may designate.

(1) The State Advocate and the Deputy State Advocate and

other advocates or legal procurators, performing duties as officers of

the State Advocate, shall have power to administer oaths.

(2) Wherever a law provides that an oath is to be taken before the

State Advocate, that oath may also be taken before the Deputy State

Advocate or before another officer of the State Advocate as delegated

by the State Advocate.

No nullity or other legal defect shall ensue when a document

relating to court proceedings which is to serve as evidence of any

order, consent, approval or direction given by the State Advocate is

signed by the Deputy State Advocate, or by an officer of the State

Advocate on behalf of the State Advocate.

(1) Where any law, other than a law of a criminal nature,

provides that any act may be done by the Attorney General, that act

may also be done by the State Advocate with the authorisation of the

Attorney General. Without prejudice to the validity of the said

authorisation as from the time when it is given, notice of the

authorisation shall be given in the Gazette.

(2) The Minister responsible for justice may make regulations

providing for any matter relating to the better implementation of the

provisions of this Act and, without prejudice to the generality of the

foregoing, may also by regulation amend any law, other than the

Constitution and any other law of a criminal nature or relating to

prosecution powers or a law which regulates the conditions of service

particular to the holders of the offices of Attorney General or of State

Advocate, for the purpose of substituting any reference to the Attorney

General with a reference to the State Advocate or of adding any

reference to the State Advocate to a reference to the Attorney General or

vice-versa.

The expression "Attorney General", wherever it occurs in the Applicability of

Members of the Judiciary (Pensions) Act, shall for all intents and the

the Judiciary

purposes of law, be deemed to also include a reference to the person (Pensions)

to State

holding the office of State Advocate appointed in terms of the Advocate.

provisions of article 91A(1) of the Constitution and any reference to Cap. 564.

the "Office of the Attorney General" shall also be deemed to include a

reference to the Office of the State Advocate.

Part II

Amendments to the Constitution

This Part amends the Constitution and it shall be read and Amendments to

construed as one with the Constitution, hereinafter in this Part referred the

Constitution.

to as "the Constitution".

Immediately after article 91 of the Constitution there shall be Addition of new

article 91A to

added the following new article 91A

the Constitution.

" State

91A. (1) There shall be a State Advocate whose

Advocate.

office shall be a public office and who shall be appointed

by the President acting in accordance with the advice of

the Prime Minister.

(2) A person shall not be qualified to hold office as

State Advocate unless he is qualified for appointment as a

judge of the Superior Courts.

(3) The State Advocate shall be the advisor to

Government in matters of law and legal opinion. He shall

act in the public interest and shall safeguard the legality of

State action. The State Advocate shall also perform such

other duties and functions as may be conferred upon him

by this Constitution or by any law. In the exercise of his

functions, the State Advocate shall act in his individual

judgment and he shall not be subject to the direction or

control of any other person or authority.

(4) Subject to the provisions of sub-article (5), the

State Advocate shall vacate his office when he attains the

age of sixty-five (65) years.

(5) Article 97(2) and (3) shall apply to the State

Advocate.".

Part III

Amendments to the Code of Organization and Civil Procedure

This Part amends the Code of Organization and Civil

Procedure and it shall be read and construed as one with the Code of

Organization and Civil Procedure, hereinafter in this Part referred to as

"the Code".

In sub-articles (2) and (3) of article 181B of the Code the

words "Attorney General" wherever they occur shall be substituted by

the words "State Advocate".

In article 436 of the Code and in the marginal note thereto, the

words "Attorney General" shall be substituted by the words "State

Advocate".

In article 437 of the Code the words "Attorney General" shall

be substituted by the words "State Advocate".

In article 440 of the Code the words "Attorney General" shall

be substituted by the words "State Advocate".

In article 441 of the Code and in the marginal note thereto, the

words "Attorney General" shall be substituted by the words "State

Advocate".

In article 443 of the Code and in the marginal note thereto, the

words "Attorney General" shall be substituted by the words "State

Advocate".

In article 445 of the Code the words "Attorney General" shall

be substituted by the words "State Advocate".

In article 446 of the Code the words "Attorney General" shall Amendment of

article 446 of

be substituted by the words "State Advocate".

the Code.

In article 447 of the Code the words "Attorney General" shall Amendment of

article 447 of

be substituted by the words "State Advocate".

the Code.

In paragraph (d) of article 521 of the Code the words Amendment of

"Attorney General" shall be substituted by the words "State article

521 of

the Code.

Advocate".

In sub-article (2) of article 611 of the Code the words Amendment of

"Attorney General" shall be substituted by the words "State article

611 of

the Code.

Advocate".

Sub-article (2) of article 786 of the Code shall be substituted Amendment of

article 786 of

by the following

the Code.

" or Attorney

(2) Nor may such plea be raised against the

General or

State Advocate Attorney General or against the State Advocate in any

action in which they are especially authorised by law to

appear, or where they are authorized by the competent

authority to appear in regard to any action touching

public policy, and in so far as the public interest is

concerned.".

In Form No. 18 in Schedule B to the Code the words Amendment of

"Attorney General", wherever they occur, shall be substituted by the Form

No.18 in

Schedule B to

words "State Advocate".

the Code.

Part IV

Amendments to the Civil Code

This Part amends the Civil Code and it shall be read and Amendments to

construed as one with the Civil Code, hereinafter in this Part referred the

Civil Code.

to as "the Code".

In sub-article (1) of article 299 of the Code the words Amendment of

"Attorney General" shall be substituted by the words "State article

299 of

the Code.

Advocate".

In sub-article (3) of article 1124E of the Code the words Amendment of

"Attorney General" shall be substituted by the words "State article

1124E of

the Code.

Advocate".

In sub-article (5) of article 7, in paragraph (c) of sub-article Amendments

(4) of article 32A, in sub-article (22) of article 33, in sub-article (9) of to

the Second

Schedule of the

article 42, in sub-article (3) of article 43 and in sub-article (8) of article Code.

48A of the Second Schedule to the Code the words "Attorney General"

shall be substituted by the words "State Advocate".

Part V

Amendments to the Attorney General Ordinance

This Part amends the Attorney General Ordinance and it shall

be read and construed as one with the Attorney General Ordinance,

hereinafter in this Part referred to as the "principal Ordinance".

Article 2 of the principal Ordinance shall be amended as

(a) sub-article (1) thereof shall be deleted and sub-article

(2) shall be renumbered as sub-article (1); and

(b) immediately after sub-article (1) thereof as

renumbered there shall be added the following new sub-article

(2) Without prejudice to the validity and duration of

appointment to the office of Attorney General made

prior to the coming into force of this sub-article, when a

vacancy occurs in the office of Attorney General the

procedure for the appointment of an Attorney General

shall be the following

(a) The Minister responsible for justice

shall establish an Appointment Commission,

consisting of a Chairperson and not less than two

(2) and not more than four (4) members, to be

composed of persons who in his opinion are

respected and trusted by the public and are

technically qualified to examine whether candidates

for the office of Attorney General have the

appropriate qualifications and other merit and

suitability requirements to occupy the said office.

(b) The Appointment Commission shall

issue a public call for applications open to persons

who have the necessary qualifications and

experience required to be appointed to the office of

Attorney General.

(c) After examining the candidates the

Appointment Commission shall submit a report to

the Prime Minister, through the Minister

responsible for justice, expressing its views on the

eligibility, suitability and merit of the candidates. In

the report the Commission may either limit itself to

giving an opinion on the candidates or it may rank

them in order of preference.

(d) In deciding upon his recommendation to

the President in terms of article 91 of the

Constitution, for the appointment of the Attorney

General, the Prime Minister shall give due

consideration to the recommendations of the

Appointment Commission.".

Articles 3 and 4 of the principal Ordinance shall be Addition of new

renumbered as articles 4 and 5 respectively and immediately after article

article 2 there shall be added the following new article

3. Without prejudice to the provisions of article 2

Attorney

General shall have the following functions

and powers

(a)

to demand that the Commissioner of

Police

(i) investigate any crime;

(ii) give the Attorney General any

information about the investigation of any

crime;

(iii) issue any charge for any crime;

(b) notwithstanding anything provided in

any other law, and in his discretion, to prosecute any

offence, alone or together with the Executive Police

or together with any other authority having

prosecution powers, or to assist in the prosecution of

any offence, before the Court of Magistrates whether

as a court of criminal judicature or as a court of

criminal inquiry, for which a person shall have been

charged before such court

Provided that for the purpose of the

implementation of what is provided in this paragraph,

any article in the Criminal Code or in any other law

which confers a function or power on the conduct of

court proceedings in the prosecution of offences

before the Court of Magistrates in the Executive

Police or in any other authority having prosecution

powers shall be deemed to also confer that function or

power in the Attorney General;

(c) the decision as to whether a prosecution

for a crime subject to a punishment exceeding the

original jurisdiction of the Court of Magistrates as a

court of criminal judicature is to be commenced shall

be taken by the Attorney General

Provided that any transitory measure issued

from time to time in terms of article 1 of the State

Advocate Act, 2019 or regulations issued by the

Minister responsible for justice under this article

may provide for transitory arrangements for the

implementation of the provisions of this article.

Without prejudice to the generality of the foregoing

such transitory measures and arrangements may

include provisions which from time to time provide

that

(a) the powers and functions of the Attorney

General provided for in this article shall only apply

to certain crimes and, or only to crimes liable to

imprisonment for a term as may be prescribed being

a term of imprisonment exceeding the original

jurisdiction of the Court of Magistrates as a court of

criminal judicature;

(b) the power of the Attorney General to

delegate, subject to those conditions, orders,

reservations, and derogations which he may from time

to time provide, the power to take the decision to

prosecute or to conduct the prosecution before the

Court of Magistrates in terms of this article to the

Commissioner of Police or to any other public

authority having prosecution powers under any law

from time to time in force.".

In paragraph (c) of sub-article (5) of article 4 as renumbered

of the principal Ordinance immediately after the words "shall lie in the

Attorney General" there shall be added the words "or in any other

person who he may designate".

Article 5 as renumbered of the principal Ordinance shall be

renumbered as article 5(1) and immediately thereafter there shall be

added the following new sub-article

"(2) Wherever a law provides that an oath is to be taken

before the Attorney General, that oath may also be taken before

the Deputy Attorney General or before another officer of the

Attorney General, as delegated by the Attorney General.".

Immediately after article 5 as renumbered of the principal

Ordinance there shall be added the following new article

" Power to

6. No nullity or other legal defect shall ensue when

delegate

a document relating to criminal or civil proceedings which

authority.

is to serve as evidence of any order, consent, approval or

direction given by the Attorney General is signed by the

Deputy Attorney General, or by an officer of the Attorney

General on behalf of the Attorney General.".

Part VI

Amendments to the Appeals Committee Regulations

This Part amends the Appeals Committee Regulations and it Amendments to

shall be read and construed as one with the Appeals Committee the

Regulations, hereinafter in this Part referred to as the "principal Regulations.

regulations".

In regulation 2 of the principal regulations the words Amendment of

"before one of the officers mentioned in article 4 of the Attorney regulation

General Ordinance" shall be substituted by the words "before one regulations.

of the officers mentioned in article 5 of the Attorney General

Ordinance or one of the officers mentioned in article 4 of the State

Advocate Act".

Passed by the House of Representatives at Sitting No. 248 of the

10th July, 2019.

ANĠLU FARRUGIA

Speaker

RAYMOND SCICLUNA

Clerk of the House of Representatives

€1.44