Today article 91(1) of Constitution provides that the Attorney General is appointed by the ‘President acting in accordance with the advice of the Prime Minister’. In terms of article 85(1) of the Constitution the President is, in this case, bound to act upon and follow whatever advice she receives from the Prime Minister.
In terms of article 6(2) of the Police Act, the Commissioner of Police is appointed by the Prime Minister.
Hence, it is the Prime Minister who decides whom to appoint to these two high offices of the State.
Contrary to the case of the judiciary, the Judicial Appointments Committee established in terms of article 96A of the Constitution does not advise the Prime Minister on the appointment of the Attorney General. Nor is there a similar Committee which advises the Prime Minister on the appointment of the Commissioner of Police.
Both the Attorney General and the Commissioner of Police need not be appointed from amongst advocates in the Office of the Attorney General or serving police officers in the Police Force respectively. In the case of the appointment of the Commissioner of Police, there is no input of the Public Service Commission in the appointment procedure.
Yet, the final decision, one advised, the other unadvised, vests with the Prime Minister.
The Opposition and others are arguing that both the Attorney General and the Commissioner of Police should instead be appointed by at least a two-thirds majority of the House of Representatives rather than by the Prime Minister. But this proposal does raise difficulties because it simply ensures that the candidates selected for these two posts are agreed to by the Prime Minister and the Leader of the Opposition and, as an extension thereto, through the whip system, by the House of Representatives when such a motion is presented for approval.
Nonetheless, should this be the way how future appointments of the Attorney General and the Commissioner of Police are to be made? I believe not.
Whilst the current appointment system has its own defects and needs to be scrapped in relation to both appointments, the proposal being made of having at least a two-third majority vote in the House of Representatives does not go far enough as it still retains the power of appointment in the political class.
Once the Commissioner of Police is being accused by the Opposition and by the Civil Society Network that he is not investigating the Panama papers scandal and FIAU reports, then the solution does not lie in appointing the Commissioner of Police with a two-third majority vote whilst leaving the procedure for his removal as it currently stands: he is removed by the Prime Minister on the recommendation of the Public Service Commission with no involvement of the Leader of the Opposition or of the House. Yet for the removal procedure to commence and before the Public Service Commission may decide to recommend the removal of the Commissioner of Police, the civil service (who is under the direct control of the Prime Minister) has to issue the charge for the institution of disciplinary proceedings. I doubt how much this would be done without the Prime Minister’s blessing or when the Prime Minister has declared himself against such removal.
Hence, the Opposition and the Civil Society Network are simply shooting themselves in the foot because what really counts here is not much the method of appointment – pertinent as it may be – but the method of removal from office.
Take the case of the Auditor General who is appointed by at least a two-thirds majority of the House and whose removal from office is regulated in the same way. Hence, if after appointment the Auditor General becomes the Prime Minister’s main critic, the Prime Minister cannot remove him from office because he requires at least a two-thirds majority vote in the House of Representatives. If, on the contrary, the Auditor General becomes satisfied with government and begins to justify all government financial impropriety, the Opposition has a problem there because government will continue to defend the Auditor General and he will never end up being removed from office.
The Bonello Commission had made different suggestions in relation to the Attorney General and the Commissioner of Police (including the judiciary as well). In so far as the Commissioner of Police is concerned, prosecutorial functions were proposed to be hived off from the Attorney General and the Commissioner of Police and bestowed in a new officer of the state – the Public Prosecutor, who would decide upon the exercise of the criminal action. It would be the independent Prosecutor General who would have the ultimate say as to which criminal offences are to be investigated and which should end up being prosecuted. The Commissioner of Police would simply end up a cog in the wheel of the machinery of justice but that wheel is operated by the Public Prosecutor. The Police will no longer be subject to ministerial control in so far as criminal prosecutions are concerned.
As to the Prosecutor General, the proposal was to treat him at par with the judiciary both in relation to appointment and removal (including discipline for minor offences). Appointment was to be made by an independent Judicial Services Appointments Authority whilst discipline and removal was also to be made by another independent Judicial Services Discipline Authority. Only judicial removal was to continue to be entrusted to the House. Of course this model could also be refined to ensure that instead of the House adjudicating upon removal from office, it could be the Constitutional Court to do so in the light of the Demicoli v. Malta case decided by the European Court of Human Rights and several other cases which this court has since then decided in relation to the dismissal of a judge. The Strasbourg Court has consistently upheld that the judicial removing authority must satisfy the right to a fair trial including the impartiality of the tribunal in question. Needless to say, the House of Representatives does not and cannot satisfy this criterion. That is why the House of Representatives (Privileges and Powers) Ordinance had to be amended after the Demicoli judgment to ensure that adjudicative functions are carried out by the competent institutions of the state – the courts – not by a parliamentary assembly which places political exigencies before justice or by mob rule.
Hence for the Opposition and the Civil Society Network to be compliant with the rule of law, they should come up with a better proposal for the appointment of the Attorney General and the Commissioner of Police than the one they are currently proposing, including also their discipline and removal.
The Bonello Commission report, supplemented by more recent decisions of the ECHR, should provide a starting point and a fruitful read. After all, Government has totally ignored the Bonello Report measures implementing better the rule of law and therefore it might not be a miss to remind Government of the proposals made by a Commission it had itself appointed in terms of a 2013 electoral pledge, even it has failed miserably to implement the multiple recommendations made therein for reasons which surely do not contribute to strengthening the rule of law in Malta.
Professor Kevin Aquilina is the Dean of the Faculty of Laws at the University of Malta