Push in Parliament for Constitutional Reform: Ensuring Independence for Malta’s Police Commissioner

Amid ongoing concerns over political influence in Malta's administration of justice, a constitutional amendment bill by the opposition aims to increase the Police Commissioner’s independence through a new parliamentary appointment process. However, other significant reforms have stalled, with the government failing to implement key rule-of-law recommendations, making future reforms unlikely ahead of general elections – writes Victor Paul Borg

Introduction

There was hope among rule-of-law activists that Malta’s police chief, Angelo Gafa, would be replaced after the expiry of his contract last June. However, the government extended his term by an additional four years. The extension was severely criticised by the main opposition party in parliament, Partit Nazzjonalista (PN), with the Shadow Minister for Justice claiming that Gafa’s terms of contract are “illegal.”

President Myriam Spiteri Debono also diplomatically alluded to the police force’s lack of independence from political influence in a speech she delivered at the 210th anniversary of the establishment of the Malta Police Force on 12 July 2024. Calling for legal reform to give the police force greater “autonomy,” the President remarked that ‘divine guidance is nowhere more necessary than when the Police Force is faced with allegations of crimes with political overtones.’ She emphasized that ‘more needs to be done if the people are to increase their trust in the Police Force as the impartial guardian of their wellbeing.’

This came just after the PN submitted a constitutional amendment bill providing for an appointment process that would ensure a future Commissioner of Police would enjoy the trust of parliament and have security of tenure, two principles intended to make the Commissioner independent from political influence. Nevertheless, there is little hope for further rule-of-law reform. A reform process that saw limited progress four years ago has stalled—and in one respect regressed—with the government failing to implement rule-of-law recommendations of a public inquiry into the murder of journalist Daphne Caruana Galizia. Additionally, the government has not supported a planned Constitutional Convention, despite promises made to the EU Commission and Venice Commission since 2019.

Controversies surrounding the Police Commissioner’s appointment

The Constitution is silent on the appointment of the Police Commissioner, and the relevant legal framework is found in the 2017 Police Act. Currently, the Police Commissioner is appointed by the government. The Public Service Commission selects a shortlist of two candidates, and the nominee selected by the cabinet is then questioned and voted upon by parliament’s cross-party Public Appointment Committee. Yet the government holds sway because it has four of the seven votes on the Committee.

There is nothing in the law about the term of appointment; all previous commissioners were simply appointed indefinitely. Many stayed until retirement or until a change of ruling party in government, when customarily top officials step aside. The government of the day can, in theory, elbow out any commissioner, since their appointment is indefinite. In the last 10 years of governance by the Labour Party, Malta has seen six commissioners amid turmoil in Malta’s rule of law. The longest serving Police Commissioner in the past decade is the incumbent, Angelo Gafa, appointed on 23 June 2020 for four years, with his term renewed in the last week of June 2024. 

The parliamentary opposition maintains that the contract is illegal as there is no legal provision for a definite term for a commissioner . . .

The parliamentary opposition maintains that the contract is illegal as there is no legal provision for a definite term for a commissioner, making Gafa’s contract ultra vires—beyond the authority of appointment established in law. This means that although in theory Gafa is on a definite contract, he is still susceptible to removal since it can technically be attacked as being beyond the law. Shadow Minister for Justice, Karol Aquilina, has told the author that he believes the government put Gafa on a definite-term contract so that it can wield the power of either allowing the contract to expire or renew it, and in that way maintain influence over Gafa.

Recent events suggest that the Prime Minister is privy to police decisions: it was the Prime Minister who first stated that former Prime Minister Joseph Muscat, the former chief of staff, a former minister, and a raft of others would be summoned to court, not arraigned under arrest. Muscat and other former top officials have been charged with several serious crimes, including money laundering. Police and legal sources told the author that the usual practice is that those accused of such crimes are arrested, interrogated and arraigned in court. Yet Gafa defended the police’s decision, stating that the magistrate who conducted the magisterial inquiry (a judicial investigation designed to collect and preserve evidence for eventual prosecution) ordered charges to be filed rather than ordering further police investigations.

In another case, a separate magistrate also recommended charges against top officials of Pilatus Bank, shuttered by the European Central Bank over money laundering. The Attorney General issued a nolle prosequi (declaration declining to prosecute) and investigators at the Financial Crimes Investigation Department (FCID) discussed finding “points” (reasons) to support the Attorney General’s intention for a nolle prosequi. This information came to light in email correspondence published by Robert Aquilina, honorary president of the rule-of-law NGO Repubblika. Repubblika has since gone to court over the matter, requesting that the court overturn the Attorney General’s nolle prosequi.

The Financial Crimes Investigation Department has been eviscerated over the past few years . . . 

The FCID itself has been eviscerated over the past few years. The department was established in 2020 under pressure from the EU and Council of Europe bodies. In subsequent years, its investigators started resigning: exact figures on the number of resignations are not available, but estimates suggest at least 25 percent (and perhaps as high as 50 percent) of investigators have resigned. Among those who resigned were some of the sharpest investigators at the FCID. It is also known that several investigations, some involving prominent businesspeople and politicians, have stalled despite FCID investigations being advanced or concluded and even with charges being prepared. All of this has contributed to a loss of confidence in the incumbent Police Commissioner by civil society and by elements within the police corps.

The opposition’s bill to enhance the Police Commissioner’s independence

The PN’s proposal for a new system for appointing the Police Commissioner is modelled on the existing system for appointing the President, Chief Justice, Ombudsman and Auditor General. These officials are appointed by a vote in parliament of at least two-thirds of the MPs after constitutional amendments to this effect were passed on 27 July 2020. The PN is proposing the same mechanism for removal of the Police Commissioner—a vote in parliament of at least two-thirds of MPs. The PN’s bill seeks to enshrine these provisions in the Constitution, ensuring that it is extremely unlikely that any government could change these provisions without the agreement of the opposition party: constitutional amendments require two-thirds approval in the parliament.

The proposal for a new system for appointing the Police Commissioner is modelled on the existing system for appointing the President, Chief Justice, Ombudsman and Auditor General.

One problem of this system of appointment is that a deadlock could develop if the political parties are unable to coalesce around a candidate. Politicians in Malta maintain that this would not happen in practice because it is a system that forces the parties to seek consensus. Yet the Council of Europe’s Venice Commission, in its various opinions between 2018 and 2020, has recommended an anti-deadlock mechanism. This means that if the parties cannot agree on a particular nominee, the appointment would instead be made by the three most-senior judges on Malta’s Constitutional Court. But the government and opposition did not put this anti-deadlock mechanism in law.

Despite this, the PN’s proposals would be a leap of progress because the constitutional changes would create the conditions for the appointment of a Police Commissioner that would have security of tenure and not be as susceptible to the political influence of the government of the day.

Other stalled constitutional rule of law reforms

Limited constitutional reform to bolster rule of law was carried out in Malta in 2020, as analyzed on ConstitutionNet. At the time, the government stated its intent to respond to other Venice Commission recommendations during a Constitutional Convention. The former President, George Vella, held widespread consultations with civil society actors in preparation for the Convention. But in his last speech in December 2023, Vella said that he had been unable to hold the Constitutional Convention due to lack of support from the government. This was referenced in the last rule of law report by the EU Commission published on 24 July 2024. In its report, the EU Commission painted a picture of a reform process that has made no meaningful progress or even stalled in various respects, not just the Constitutional Convention, which was slated to tackle reforms to strengthen the media, expand public participation in decision-making, and make parliament stronger and more independent of the executive (thereby reducing the oversized powers held by the Prime Minister in Malta). 

The former President said that he had been unable to hold the Constitutional Convention due to lack of support from the government.

However, not only has the Convention not occurred, a key reform in the appointment of the Commissioner for Standards in Public Life made in 2020 has been rolled back. The task of the Standards Commissioner is to investigate breaches of the code of ethics of parliamentarians, and the former Commissioner’s investigations led to embarrassments for the ruling party and to one high-profile resignation, that of the Minister of Education. After the first Standards Commissioner, George Hyzler, vacated his post for a position at the EU’s European Court of Auditors, the two political parties in parliament failed to agree on a new commissioner. The law held that the Commissioner had to be appointed by the vote of at least two-thirds of parliamentarians, and the government did not have enough votes without the opposition. But in that case, unlike other cases where the two-thirds vote threshold was enshrined in the Constitution, the mechanism was put into an ordinary law. The government simply changed the law so that it could appoint the Standards Commissioner of its choice without the votes of the opposition. In this manner, one of the planks of reforms of 2020 was dismantled.

Meaningful reform or further reform is probably less likely in the next few years as the ruling Labour Party becomes more preoccupied with its electoral situation after a swathe of voters deserted it last June in European Parliament elections, and internal factions jostle for influence. This is also the signal that the government sent with the renewal of the term of the incumbent Police Commissioner. Labour insiders who spoke to the author of this article feel that vested interests within the party are an obstacle to meaningful reform, and that the only reform we may see are populist gestures. Labour grandee Evarist Bartolo has also said that the electoral result has weakened the Prime Minister to the point that any strong reform before the general election in less than three years is too electorally risky and, as such, too late.

Victor Paul Borg is a Maltese journalist whose work has been published around the world. His published investigative reporting and analyses are featured at https://victorborg.com/.

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Suggested citation: Victor Paul Borg, ‘Push in Parliament for Constitutional Reform: Ensuring Independence for Malta’s Police Commissioner’, ConstitutionNet, International IDEA, 6 August 2024, https://constitutionnet.org/news/voices/push-parliament-constitutional-reform-ensuring-independence-maltas-police-commissioner

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