Ongoing public vociferous calls for the resignation of the Attorney General and the Commissioner of Police by the Nationalist Party and civil society organisations raises the issue of mob rule versus the rule of law. Are we to be governed by mob rule or are we to be governed by the rule of law? Is Malta to be governed by people’s courts and from the squares rather than by the lawfully established constitutional institutions of the state and due process of law?

The rule of law dictates that should the Commissioner of Police and the Attorney General be removed from office, this should be done only in terms of the dictates of the law. For everybody is under the law and everybody has to observe the law and be regulated accordingly. Indeed, there are provisions in the Constitution and in ordinary law which should be respected when a public officer is to be, or is, removed from office.

As to the Attorney General, he can be removed from office only after the procedure set out in the Constitution is complied with. Article 91(5) of the Constitution applies the procedure regulating the removal of a member of the judiciary set out in article 97(2) and (3) to the Attorney General. These provide that:

‘(2) A judge of the Superior Courts shall not be removed from his office except by the President upon an address by the House of Representatives supported by the votes of not less than two-thirds of all the members thereof and praying for such removal on the ground of proved inability to perform the functions of his office (whether arising from infirmity of body or mind or any other cause) or proved misbehaviour.

(3) Parliament  may  by  law  regulate  the  procedure  for  the presentation of an address and for the investigation and proof of the inability or misbehaviour of a judge of the Superior Courts under the provisions of the last  preceding sub-article’.

Parliament has, through the Commission for the Administration of Justice Act, Chapter 369 of the Laws of Malta, addressed the procedure to be followed for the removal of the judiciary and Attorney General:

‘9. (1) Where notice is given in the House of Representatives of a motion for presenting an address to the President as is referred to in article 97(2) of the Constitution, the Speaker shall, without allowing any publicity, keep the motion pending, and shall refer the same for investigation to the Commission.

(2) The motion shall contain definite charges against the judge or the magistrate, as the case may be, on the basis of which the investigations are to be held. Together with the motion there shall be filed a statement showing the grounds on which each of such charges is based.

(3) Such charges together with such statement shall be communicated to the judge or magistrate as the case may be, and he shall be given a reasonable opportunity to present a written statement of defence within such time as may be specified by the Commission.

(4) The Commission shall carry out the necessary investigation Commission and make a report thereon to the Speaker. If the report of the Commission contains a finding that there is no misbehaviour or that the judge or magistrate does not suffer from any inability, then, no further steps shall be taken in the House in relation to the report and the motion pending in the House shall not be proceeded with.

(5) If the report of the Commission contains a finding prima facie that the misbehaviour or incapacity has been proved then, the motion referred to in article 97(2) of the Constitution shall, together with the report of the Commission, be taken up for consideration by the House.

(6) If upon consideration by the House, it is satisfied that the misbehaviour or incapacity has been proved and if the motion is adopted by the House in accordance with the provisions of article 97(2) of the Constitution then the misbehaviour or inability of the judge or magistrate, as the case may be, to perform the functions of his office shall be deemed to have been proved and an address praying for the removal of the judge or magistrate, as the case may be, shall be presented to the President by the House in the same session in which the motion has been adopted.

(7) Proceedings by the Commission under this article shall be held in camera. The member of the House presenting the motion and the judge or magistrate whose conduct is being investigated shall have a right to be present during the whole process, to produce witnesses in support of the charges set in the motion or in defence, and to be assisted by any advocate or legal procurator’.

Therefore, the Attorney General is removed from office in terms of law and following due process of law. So has any M.P. presented a motion in the House of Representatives for the removal of the Attorney General providing evidence of proved misbehaviour?

As to the Commissioner of Police the matter is regulated by article 16 of the Police Act, Chapter 164 of the Laws of Malta. It provides that:

‘It shall be lawful for the Prime Minister on the recommendation of the Public Service Commission to remove from his office at any time a police officer who –

(a) has not given any indication of being or has ceased to be an efficient police officer; or

(b) is incapable by reason of some infirmity of mind or body of discharging the duties of his office when such infirmity is likely to be permanent; or

(c) it is considered, having regard to the conditions of the Force, the usefulness of the officer thereto, and all the circumstances of the case, that he should in the public interest no longer serve as a member of the Force’.

It is up to the Prime Minister, following a recommendation by the Public Service Commission (PSC), to remove from office the Commissioner of Police. If the Permanent Secretary in the Ministry responsible for home affairs does not take any action before the PSC requesting the removal of the Commissioner of Police, then the Minister responsible for home affairs is answerable to the House. This also means that a motion of no confidence may be tabled by any MP against the said Minister. But has this been done?

Thus, the law already contemplates the procedure for removal of the Attorney General and the Commissioner of Police. The rule of law dictates that such procedures are strictly abided by. To do otherwise and leave the matter of removal of these two public officers to be addressed by the mob’s boisterous shouting and clattering in the streets does not serve the proper purpose of due process of law. Nor is it conducive to the attainment of the rule of law and respect of the right to a fair trial.

Now whether the issue as to appointment, discipline and removal of the said public officers in extant law is satisfactory or not is another issue. The Bonello Commission had made ample recommendations on this point but they have fallen on deaf ears remaining in large measure unimplemented.

Professor Kevin Aquilina is the Dean of the Faculty of Laws at the University of Malta