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The Security Services Act
Malta’s Security Services Act was enacted in 1996, largely copied off the British version, except for the safeguards which ensure a system of checks and balances, through the creation of independent entities.
There are grave omissions of accountability in the Maltese version of the law. While in the UK, the MI5 has no executive role, which means it cannot detain or arrest people, in Malta the head of the Security Service is also the Commissioner of Police – that means that both roles are conflicting with respect to the role of the MSS, which retains an ambivalence over whether it actually is a ‘secret police force’.
In Malta it is the Home Affairs Minister or the Prime Minister who personally authorises warrants for the MSS to intercept letters, telephone or other electronic communication, or interfere with private property.
The UK framework however ensures a system of checks and balances through three independent bodies: the Commissioner, the Complaints Tribunal and the Intelligence and Security Committee. Malta has no form of accountability.
The Commissioner
In the UK, the Commissioner is a person who holds or has held a high judicial post: a judge, or a retired one. In Malta, this role is filled in by the Attorney General – the state’s prosecutor – unless the government chooses to appoint an independent officer.
In British law, the Commissioner reviews the government’s exercise of its faculty to issue warrants – in Malta it’s the attorney general, who represents government and assists the police in court cases, who is expected to fulfil this independent function.
Even more serious is the fact that as commissioner (not to be mixed up with the Police Commissioner) the AG in this case is expected to investigate any complaints made by the public about the Security Service.
The Complaints Tribunal
To handle complaints from the public, the UK employs a complaints tribunal that treats complaints about interception or misconduct. In Maltese law, there is no such independent body.
In the UK, the tribunal is distinct from both the Home Secretary and the Commissioner. It consists of three senior legal professionals appointed by the Queen, as Head of State, for a five-year period. The tribunal can visit MI5 – the British secret service – to examine its records as well as question MI5 staff.
The Intelligence and Security Committee
The UK uses this committee to examines the expenditure, administration and policy of MI5 – it is composed of nine MPs, appointed by the Prime Minister in consultation with the Leader of Opposition. No member may be a government minister.
In complete contrast, Malta’s equivalent – the Security Committee – is composed of the Prime Minister, the Home Affairs Minister, the Foreign Affairs Minister and the Leader of the Opposition. There is a conflict of interest in that while the committee is expected to examine the policy of the MSS, both the PM and the Home Affairs Minister occupy dual roles: they are the ones responsible for authorising warrants, and they also sit on the committee that oversees their own actions.
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