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The Permanent Commission Against Corruption (Amendment) Act, 2010 (Bill No. 57)

A Bill entitled

AN ACT to amend the Permanent Commission Against

Corruption Act, Cap. 326.

Short title and commencement.

Cap. 326.

Substitution of the long title of the principal Act.

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. (1) The short title of this Act is the Permanent Commission Against Corruption (Amendment) Act, 2010, and this Act shall be read and construed as one with the Permanent Commission Against Corruption Act, hereinafter referred to as "the principal Act".

(2) The provisions of this Act shall come into force on such a date as the Minister responsible for justice may by notice in the Gazette establish, and different dates may be so established for different provisions or different purposes of this Act.

2. The long title of the principal Act shall be substituted by the following:

"To make provision for the establishment and functions
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of a permanent commission against corruption, whose aims shall be the investigation of corrupt practices committed both in the public sector as well as in the private sector, both by persons who occupy a public office, as well as by persons in their private capacity, both by natural persons as well as by juridical persons; and for purposes connected therewith.".

3. In article 2 of the principal Act, immediately after the definition "corrupt practice" there shall be added the following new definition:

" "person", for the purposes of this Act, includes any natural person as also any other legal person or juridical body;".

4. Article 3 of the principal Act shall be amended as follows: (a) subarticle (1) thereof shall be substituted by the

following:
"(1) There shall be a Commission, to be known as the Permanent Commission Against Corruption, which shall consist of:
(a) a chairman, who shall be appointed by the President of Malta acting in accordance with a resolution of the House of Representatives supported by the votes of not less than two-thirds of all the members in the House, and the provisions of the proviso to article 108(2) of the Constitution of Malta shall, mutatis mutandis, apply in relation to such appointment; and
(b) two other members who shall be appointed by the President of Malta acting in accordance with the advice of the Prime Minister, given after he has consulted the Leader of the Opposition.";
(b) subarticle (5) thereof shall be substituted by the following:
"(5) A member of the Commission may be removed from office by the President of Malta, acting in accordance with the advice of the Commission for the Administration of Justice.";
(c) in subarticle (6) thereof, for the words "the President of Malta acting in accordance with the advice of the Prime

Amendment of article 2 of the principal Act.

Amendment of article 3 of the principal Act.

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Minister given after he has consulted the Leader of the Opposition", there shall be substituted the words "the President of Malta acting in accordance with his own deliberative judgment after having consulted the Prime Minister and the Leader of the Opposition"; and

Amendment of article 4 of the principal Act.

Amendment of article 6 of the principal Act.

(d) in subarticle (7) thereof, for the words "by the President of Malta acting in accordance with the advice of the Prime Minister given after he has consulted the Leader of the Opposition", there shall be substituted the words "by the President of Malta acting in accordance with his own deliberative judgment after having consulted the Prime Minister and the Leader of the Opposition".

5. Article 4 of the principal Act shall be amended as follows: (a) paragraph (a) thereof shall be substituted by the

following new paragraph:
"(a) to consider alleged or suspected corrupt practices committed by or with the participation of any person, including any person mentioned in paragraphs (b) and (c) and/or any other person, and where the Commission determines that there are sufficient grounds for holding an investigation, to investigate any such allegation or suspicion and to make a report thereon in accordance with article 11;"; and
(b) in paragraph (c) thereof, for the words "to investigate the conduct of any person who is or has been entrusted with" there shall be substituted the words "to investigate the conduct of any other person, including any person who is or has been entrusted with".

6. Article 6 of the principal Act shall be amended as follows: (a) in paragraph (a) of subarticle (1) thereof, for the

words "any person mentioned in article 4(b) and (c)" there
shall be substituted the words "any person mentioned in article
4(a), (b) and (c)";
(b) subarticle (2) thereof shall be substituted by the following new subarticle:
"(2) The provisions of this article shall apply to and in connection with every person."; and
(c) immediately after subarticle (2) thereof there shall
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be added the following new subarticle:
"(3) The provisions of articles 121A to 121E, both inclusive, of the Criminal Code shall apply and the offences mentioned in the said articles shall be considered as corrupt practices for the purposes of subarticles (1) and (2).".

7. Immediately after article 7 of the principal Act there shall be added the following new article:

Addition of new article to the principal Act.

"Special

Prosecutor.

Cap. 9.

7A. (1) The Commission shall appoint a Special Prosecutor to assist it in its functions and to exercise the functions established under this article. Any person appointed to such office must be an advocate who has practised as an advocate in Malta for a period of not less than seven years or a person who has occupied the rank of at least a Superintendent of Police for not less than seven years and shall hold office for a period of four years which can be renewed for one further period of four years.
(2) The Special Prosecutor shall be debarred from any other employment and shall not hold any commercial interests in companies or other partnerships as recognised by law.
(3) The Special Prosecutor shall exercise his functions under the direction of the Commission.
(4) The functions of the Special
Prosecutor shall be the following:
(a) the Special Prosecutor shall make a report to the Executive Police in accordance with article 535 of the Criminal Code of any act or omission which, if proved, could constitute a corrupt practice in accordance with this Act, and the Executive Police shall make such investigations on such report and proceed thereon in accordance with the provisions of the Criminal Code or any other law applicable thereto;
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Cap. 9.

Cap. 9.

Cap. 9.

(b) where the Commissioner of Police fails to act on any such report, the Special Prosecutor shall be entitled to make an application before the competent court in accordance with article 541 of the Criminal Code;
(c) the Special Prosecutor shall also be entitled to make a report in accordance with article 546 of the Criminal Code on any matter relating to a corrupt practice under this Act;
(d) the Special Prosecutor shall in any prosecution on any corrupt practice have the same rights as are in accordance with article 410 of the Criminal Code accorded to the injured party.
(5) The Commissioner of Police, acting on a report under subarticle (4)(a), and a Magistrate conducting an inquiry under subarticle (4)(c), shall make reports to the Commission at intervals of not more than one month of the progress of the investigation or the inquiry, as the case may be.".

Consequential amendment to the Criminal Code.

Cap. 9.

8. In subarticle (1) of article 121A of the Criminal Code, for the words "of any person referred to in the preceding articles of this sub-title" there shall be substituted the words "of any person referred to in the preceding articles of this sub-title and of any other person".

Objects and Reasons

The objects of this Bill are to widen the scope of the Permanent Commission Against Corruption Act to include private citizens and other persons; to provide for the appointment of a Special Prosecutor within the Permanent Commission against Corruption, and to provide for the functions of the said Special Prosecutor.