Choosing the chief in blue: A game of politics

For police historian Eddie Attard the political bickering surrounding the appointment of the police commissioner is nothing new

30 January 2020, 9:00am
by Kurt Sansone

7 min read

The political bickering surrounding the appointment of the police commissioner may appear recent but for police historian Eddie Attard it is nothing new.

“The politics surrounding the appointment and removal of the police commissioner has existed forever,” Attard said.

It has always been the Prime Minister’s prerogative to appoint the police commissioner and Attard cannot see it otherwise.

Attard is averse to the proposal made by the Nationalist Party to have the police chief chosen by a two-thirds parliamentary majority.

“God forbid a police commissioner has to be removed by a two-thirds majority… look at what happened when the PN government wanted to remove a judge who was not going to work and could not obtain the necessary two-thirds in Parliament,” Attard said.

For him, it all boils down to making a good choice, something that former human rights judge Giovanni Bonello told The Malta Independent last week.

Reacting to the government’s proposal to change the method of appointment by introducing a call for applications, Bonello said despite the positive move that appears to reduce the Prime Minister’s unfettered powers, the outcome remained the same: “The bottom line remains exactly the same – he [the Prime Minister] hires, he fires.”

But Bonello insisted that it was people, not systems, that played a determining factor. “A perfect system in the hands of crooks works far worse than a flawed system in the hands of people of integrity… What those who respect good governance should aspire to is solely entrusting the workings of the state to upright officials,” Bonello was quoted.

He said that only time will tell whether the government’s proposal would give better results.

The Venice Commission’s opinion in 2018 did not speak of a two-thirds majority to choose the police commissioner. On the contrary, it suggested a public call and even opened up the possibility of the Prime Minister or the President having a veto on the name selected by the board evaluating the applications.

Within this context, the government’s suggestion appears to be closer to the Venice Commission’s proposal than the PN’s two-thirds option.

However, the context of mistrust in public institutions that has been building over the past few years cannot be ignored, especially after the shocking court developments in relation to Daphne Caruana Galizia’s murder.

This is why the PN’s two-thirds option has a sweet sound to it. Robert Abela’s leadership rival Chris Fearne had even embraced it during his campaign.

The two-thirds option may give the police commissioner security of tenure and the moral authority to appear politically impartial but it can also create problems if the head of a disciplined force goes against government policy and can’t be removed.

Whatever direction is taken, the debate is bound to be intense.

1. How does Malta appoint the police commissioner

The police commissioner is appointed by the Prime Minister in accordance with the law regulating the police force and holds office for a period of five years. The commissioner is eligible for re-appointment. The law gives the Prime Minister unfettered discretion to appoint and remove the police commissioner.

2. The Venice Commission opinion

In its opinion on Malta’s rule of law structures released in December 2018, the Council of Europe’s Venice Commission suggested the introduction of a “public competition” for the post of police commissioner. The commission also proposed that the “appointing authority (the Prime Minister or President) should be bound” by the results of the evaluation of that competition. However, the Venice Commission also gave some leeway, suggesting that the appointing authority may have the power of veto against the selected candidate.

The commission outlined the importance of having a police force that enjoys the public’s confidence and is “perceived as politically neutral in the service of the State and the professional, unbiased, enforcement of the law and the protection of the citizen”.

3. The PN’s changing proposal

The Nationalist Party’s latest proposal outlining the method of appointment for the police commissioner speaks of a two-thirds parliamentary vote.

But the Bill put forward last week differs from what the party suggested in 2015 and more recently, last December.

This is how the PN’s position has shifted over the past five years:

2015 – Two-thirds vote with fall-back option

In its first extensive policy document under then leader Simon Busuttil, the PN proposed applying the two-thirds majority rule in Parliament for the appointment of “positions of high public office”. The police commissioner and the commander of the armed forces were two such posts. However, the proposal also included a fall-back option – if a two-thirds majority is not achieved after two rounds of voting, a simple majority would suffice.

2017 – Electoral manifesto retains two-thirds option

In a proposal linked to constitutional changes, the manifesto called for the introduction of a two-thirds parliamentary majority requirement “for the highest appointments of State”. It also clarified that in order to avoid a vacancy in the case that the two-thirds majority is not achieved after two votes, “a simple majority on the third vote will suffice”. This proposal retained in its entirety the suggestion made two years earlier without specifying which roles would qualify for two-thirds option.

2019 – Good governance document

In its first major policy document under Adrian Delia’s helm, the PN released a good governance document in December, which departed from the two-thirds principle to appoint the police commissioner. The document proposed the creation of a “committee of experts appointed by consensus between of both sides of the House, that will report to Parliament and the President… on the steps that are necessary to ensure the independence and effectiveness of the police and the army in all circumstances”. This committee will also be tasked to suggest the method of appointment of the army commander, the police commissioner and the highest officers in these disciplined forces.

2020 – PN draft law

A private members’ Bill put forward by the PN in January returned back to the two-thirds principle. The proposed law will allow the Prime Minister to choose the police commissioner but the appointment will only become effective after a parliamentary grilling followed by a two-thirds majority vote in parliament on the nomination. However, unlike its previous proposals, the PN did not propose a fall-back position if no agreement is reached. Removal of the police commissioner can only happen after parliament approves a motion to that effect by a two-thirds majority.

4. The government’s proposal

Robert Abela has proposed a new system that increases the level of scrutiny prior to the appointment of a police commissioner but which in practice allows the government to have its way.

The proposal put forward foresees the Public Service Commission, a constitutional body, issue a public call for the post of police commissioner. An evaluation board would then propose the two most suitable candidates to the Prime Minister. The candidate chosen by the Prime Minister would then face a grilling at the hands of MPs in the public appointments committee, where a simple majority vote would suffice to confirm the choice.

The proposal does not outline how the police commissioner can be removed but given the method of appointment, it is likely to remain in the Prime Minister’s discretion.

Malta's previous Police Commissioners