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The Attorney General And Counsel For The Republic (Constitution Of Office) (Amendment) Act, 2004 (Bill No. 24)

A BILL

entitled

AN ACT to amend the Attorney General and Counsel for the Republic

(Constitution of Office) Ordinance, Cap. 90.

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> -

Short title and commencement.

Substitution of long

title to the principal law.

Amendment of

Article 1

of the principal law.

1. (1) The short title of this Act is the Attorney General and
Counsel for the Republic (Constitution of Office) (Amendment) Act,
2004.
(2) This Act shall be read and construed as one with the Attorney General and Counsel for the Republic (Constitution of Office) Ordinance, hereinafter referred to as “the principal law” and 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 established for different premises and purposes thereof.
2. For the long title to the principle law there shall be substituted the following>
“To provide for the Office of Attorney General”.
3. In article 1 of the principal law for the words “Attorney General and Counsel for the Republic (Constitution of Office) Ordinance” there shall be substituted the words “Attorney General Ordinance”.
4. For article 2 of the principal law there shall be substituted the following>
C 49

Substitution of

Article 2

of the principal law.

“Attorney

General.

2. (1) The Attorney General 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) The Attorney General shall be the Chief Prosecuting Officer in Malta having such powers in connection with Criminal proceedings and as may from time to time be by law provided. In the exercise of his powers to institute, undertake or discontinue criminal proceedings the Attorney General is to exercise such powers in his individual judgement.
(3) Where under any law the Attorney General 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 Attorney General when acting under the direction of the Attorney General in anything in which the Attorney General 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 Attorney General.”.
5. Article 3 of the principal law shall be amended as follows>
(a) in sub-article (1) thereof for the words “Deputy Attorney General” and other officers to be styled respectively> “Assistants to the Attorney General”, “Senior Counsel for the Republic” and “Counsel for the Republic”, there shall be substituted the words “Deputy Attorney General and other Officers of the Attorney General”< and
(b) in sub-article (2) thereof for the words “the Deputy Attorney General, the Assistants to the Attorney General, the Senior Counsel for the Republic and the Counsel for the Republic” there shall be substituted the words “the Deputy Attorney General and the other Officers of the Attorney General”, and

Amendment of

Article 3

of the principal law.

C 50
(c) immediately after sub-article (2) thereof there shall be added the following sub-articles>
“(3) The Office of the Attorney General is hereby designated as a Government Agency and the provisions of subarticles (5) to (9) of this article shall apply to the said agency.
(4) The Attorney General 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 Attorney General.
(5) (a) The Office of the Attorney General shall as a government agency be headed by the Attorney General and shall be the medium through which the Attorney General 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 Attorney General shall lie in the Attorney General.
(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 Attorney General is in accordance with the Constitution or any other 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 Attorney General.
(6) The Attorney General and the employees of the said agencies 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 Attorney General 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 Attorney General 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 Attorney General with the concurrence of the Minister responsible for finance and shall moreover be subject to audit by the Auditor General.
(b) The Attorney General shall not later than six 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.
(c) The reports referred to in paragraph (b) shall be laid on the Table of the House by the Minister not later than six weeks after its receipt, or where the House is during the period not in session not later than the second week after the House resumes its sittings.
(8) (a) Without prejudice to the provisions of any other law to the contrary the agency may, with the concurrence of the Minister responsible for the agency, have a Management Board which shall consist of the Attorney General as chairman and not less than two but not more than four members as the Minister responsible for the agency may be direction establish and appoint.
(b) Any direction so made may be amended, substituted or revoked by another direction.
(c) Where such a Management Board exists, the Attorney General shall, subject to a law to the contrary and to any directives issued by his Minister, act in
C 51
C 52

Amendment of

Article 4

of the principal law.

Consequential amendments

of other laws.

accordance with the general direction and control of that
Board.
(9) (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 Attorney General, 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 he 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 offer, if such terms and conditions, taken as a whole, in the opinion of the Prime Minister offer substantially equivalent or greater benefits.”.
6. In article 4 of the principal law for the words from “The Attorney General” to the words “and Counsel for the Republic” there shall be substituted the words “The Attorney General and the Deputy Attorney General and other Officers of the Attorney General”.
7. (a) The Commissioner for Oats Ordinance, Cap. 79, shall be amended as follows>
(i) subarticle (1A) of article 3 thereof shall be deleted<
(ii) for article 6 thereof there shall be substituted the following>
C 53

“Commiss- ioners for Oaths ex officio.

6. (1) The Attorney General, the Deputy Attorney General and such of the other Officers of the Attorney General as the said Attorney General may from time to time designate by notice in the Gazette, as well as the magistrates, shall ex-officio be Commissioners for Oaths.
(2) The designation referred to in subarticle (1) may be made by reference to a person or persons or by designation of the office or rank held.”< and
(b) The Pensions Ordinance shall be amended as follows>
(a) in subarticle (1) of article 9 thereof>
(i) for the words “other than a judge” there shall be substituted the words “other than a judge or the Attorney General or a Magistrate”< and
(ii) in the proviso to paragraph (1) of regulation 4 contained in the Schedule thereto, for the words “Provided that if an officer”, there shall be substituted the words “Provided that if an officer other than a judge, the Attorney General or a Magistrate”.
8. The Attorney General (Constitution of Office) Repeal of the
(Amendment) Act, 2002 is hereby repealed.

Attorney General

(Constitution of Office) Amendment Act,

2002

Act X of 2002.

______________

Objects and Reasons

The object of the Bill is to create one unified Government agency for the office of the Attorney General instead of two separate agencies as proposed in Act X of 2002.