United Nations expert says President should appoint Security Service head, not PM

The UN Special Rapporteur on the right to privacy is recommending to the Government of Malta to reinforce the protection of fundamental human rights and respect for the rule of law in the context of the reform of its surveillance, policy, legislation and practices.

Prof. Joe Cannataci, of Malta, appointed as an independent expert by the Human Rights Council in 2015 in the wake of the 2013 Snowden revelations over surveillance, submitted a set of detailed proposals to the government about the overhaul of Malta’s Security Service Act as well as complementary constitutional amendments.

“Recent developments in Malta seem to indicate that existing safeguards need to be significantly improved in order to conform to Malta’s obligations under human rights law and thus retain the confidence of the international community in the rule of law in Malta,” Cannataci said.

“Malta’s laws need to be reformed so as to introduce greater accountability and better safeguards which would protect privacy, the rule of law and democratic governance in Malta.

“I have followed closely the revelations which have unfolded in Malta’s judicial proceedings over the past several weeks and I am offering a set of detailed recommendations which should tighten safeguards and avoid the current potential for conflicts of interest, especially where the role of ministers and the Prime Minister is concerned,” he said in the letter to the Government.

Among the recommendations are the creation of an independent Security Commissioner responsible for approving interception warrants and other activities of the Malta Security Service (MSS); the creation of a Security Service Oversight Board consisting of three serving or retired Judges tasked with oversight of the Security Commissioner and the MSS as well as with dealing with complaints from the public about the MSS; and the change of ultimate reporting lines for the MSS from the Prime Minister to the President.

“These new legal safeguards should intrinsically improve the protection of citizens available under Maltese law and also serve to bolster international confidence that the Executive in Malta is sincerely committed to bringing integrity to the country’s institutions,” said Cannataci.

Cannataci also proposed the expansion of the President’s powers in appointing the Head of the MSS, the Security Commissioner and the Security Service Oversight Board, and an increased constitutional role for the President of the Republic with regard to the operations and findings of the MSS.

The UN expert also said Malta should have a new constitutional power to dismiss the Prime Minister in cases where when, after information received by the President in terms of the Security Services Act or on account of strong evidence in the public domain, the President would remove the Prime Minister from office on grounds that his behaviour or those of his close associates may be exposing him or them to imminent prosecution for serious crimes or are otherwise seriously prejudicial to the national interest or to the international reputation of Malta.

The observation dovetails with recent revelations in the Daphne Caruana Galizia assassination investigation, in which it was revealed that Joseph Muscat’s chief-of-staff Keith Schembri was present for MSS briefings which identified his business associate and friend Yorgen Fenech as the mastermind – yet was never dismissed from the briefings.

Cannataci has also proposed the tightening of Parliamentary scrutiny by the elevation of the Security Committee to a standing committee of Parliament and the removal of Prime Ministerial veto over what the Security Committee actually reads, with such “filter power” being instead transferred to the President.

Malta employs an independent Commissioner – usually a retired judge or the Attorney General – to receive complaints from the public and to review the home affairs minister’s exercise of the issuing of warrants for interception.

The position is required to be held by a person ‘who holds or has held high judicial office’, to ensure independence from government. However, Malta’s law allows the Attorney General to fill the post if it has not been accorded to a retired judge – a questionable aspect when the AG represents government.

Malta’s Security Committee is composed of the Prime Minister, the Home Affairs Minister, the Foreign Affairs Minister and the Leader of the Opposition. Given that the committee examines the policy of the Security Service, there is a conflict of interest with the fact that the Home Affairs Minister is responsible for authorising warrants whilst overseeing the actions of the Secret Service.