Prime Minister Robert Abela’s new system for the appointment of the police chief may seem like an improvement over the previous unfettered discretion of Joseph Muscat in making the appointment. But as senior justice sources have pointed out, the prime minister remains something of a puppet master in the appointment.
The only thing that has changed is that his hands are hidden, and his grip on the strings has slightly weakened.
The new system would see applicants compete in a call for applications managed by the Public Service Commission, which would put forward two candidates to the prime minister, who would then proceed to choose one.
Yet the prime minister would have influence over the appointee because the majority of members of the Public Service Commission are appointed by the government. That makes the Public Service Commission susceptible to influence by the prime minister.
Last year’s recommendations of the Venice Commission were intended to eliminate the influence of the prime minister in making the appointment, directly or indirectly.
The Council of Europe organ, the world’s most eminent body in constitutionalism and democracy through law, stressed that the police commissioner had to be seen as politically neutral and professional, and benefit from broad public trust across party lines.
The recommendation was for the police chief to be elected in a transparent, competitive process, while at the same time allowing the prime minister or president to have the power of veto.
Prime Minister Abela hailed his system as an improvement over recommendations of Venice Commission because he would forgo the power of veto. Yet that is different from the discretion of selection – veto used judiciously can raise the bar of the selection process, while discretionary selection opens the door to indirect influence.
The commission’s recommendations were in fact moulded amid cynicism of Maltese leaders’ political goodwill. Head of delegation and co-author of the report, Martin Kuijer, had said at the time that the Commission had taken into account the attitude of the Maltese authorities.
These dynamics have often been mentioned by senior justice sources who are fond of expressing the truism that, in the final analysis, so much depends on the person sitting in judgment, or making the appointments, or taking decisions.
Abela’s preferred appointment system falls short on at least some counts of good practice.
Of all the options recommended over the years, perhaps the system least susceptible to Malta’s corruptibility and partisanship is to have an independent authority or commission make all the key appointments in the justice sector – the judiciary, commissioner of police, attorney general and state advocate. Half of its members would typically come from the judiciary, and the rest drawn broadly from respected quarters. Candidates for appointment would then be screened and interviewed by a parliamentary committee in the final stage of approval.
The Venice Commission made other police-related recommendations that have yet to be implemented. Chief among these is the ability of victims of crime, or juridical parties, to challenge any decision to withhold or abandon prosecutions. At present, when it comes to prosecutions under the remit of the police, victims of crime can resort to the so-called ‘police challenge’ – applying to the criminal court to serve an order on the police to prosecute any given case.
But under the State Advocate Act enacted last July, prosecutions of crimes punishable by more than 12 years imprisonment is vested in the Attorney General, and in such crimes the victims or other parties have no possibility of challenging a nolle prosequi – a formal notice of abandonment of part or all of the prosecution’s case.
Legal scholars argue that the absence of such provisions in Maltese law is at odds with the European Convention of Human Rights, as well as the principle of effective judicial protection enshrined in European Union law, which takes supremacy over national law.
More widely, magistrates who work in the criminal court often groan about the quality of prosecutions mounted by the police. One magistrate recently lamented about the criminals he had to acquit due to sloppy or faulty police prosecutions. Within this context, the need to take prosecutions out of the hands of police entirely and entrust them to lawyers has long been felt in legal and court circles.
The idea would be to have lawyers in the AG’s office charge people in court and mount prosecutions instead of police inspectors, who are not trained in law. Lawyers maintain that this would improve the efficiency and administration of criminal justice.
And now the reform intended to put the commissioner of police on a more independent and professional footing has resuscitated the hope that the government would concurrently move on the other two essential police reforms – give victims of crime the ability to challenge all nolle prosequi and put all prosecutions in the hands of lawyers.