The latest appointment of the Commissioner of Police is a surreal Kafkaesque appointment right from the beginning till the end. It contributes to the politicisation of the Police Force rather than attempting to disentangle it from government to allow it to perform its legal duties without any form of political interference or hindrance.
Government thinks that we are so gullible to believe that the procedure that has been adopted this year is ‘new’ and not a continuation of the preservation of the status quo, if not even worse: under the new procedure government continues to choose – unhindered – whoever it wants to appoint unshackled as Commissioner of Police and, after it does so, in order to refine the status quo, it continues to dictate and control the new Commissioner of Police through a one year probationary period.
What is indeed really novel about the ‘new’ appointment procedure is, amongst other things, the probationary period that renders the Commissioner of Police in total and absolute subjugation – a puppet to use more flowery language – of the government of the day. It is indeed the Public Service Commission – which is supposed to be independent from government – that has come up with this government enhanced power over the Commissioner of Police.
The fact that the government does not resort to the probationary period or even by way of lip service declares that it is renouncing to this right, it is still there, part of the conditions of employment: the sword of Damocles remains hanged on the Commissioner of Police surely for a one year period and, possibly, even beyond if his performance bonus and other perks are approved by his political master or a civil servant appointed (and removable) by one and the same political master.
All this is a surreal tragicomedy, typical of a Kafaeqsue novel. If Franz Kafka was still around, his follow up novel to ‘The Castle’ might well have been ‘The Maltese Commissioner of Police’ and his potential characters would have included the Prime Minister, the Minister responsible for home affairs, Cabinet ministers, the Chairman of the Public Service Commission, the Chair of the Venice Commission, the MPs voting in favour of the Government’s sole nominee, in addition to the selected and other short-listed candidates for the post.
The ‘new’ appointment procedure is a farce not only because an average of one Police Commissioner per year has been appointed under the Labour Government since 2013 thereby removing the much needed continuity and serenity for the Corps to function and in the process destabilising it internally.
It is a farce also because it has been sanctioned by none other than the Council of Europe’s Venice Commission for Democracy through Law, the Venice Commission, which saw nothing wrong in the ‘new’ appointment procedure. In fact the Venice Commission has ended up hostage to its original report for it partook in the conception and recommendation of the new procedure. Their only comment on the ‘new’ appointment system was: ‘The Commission takes note that, following a recent reform, the position of the police commissioner will be filled after a public call for applications. Applications will be analysed by the Public Service Commission, which will then propose two candidates to the Cabinet’.
It is also a farce because the selected person has been burnt out before he was actually appointed. The Opposition did not attend the parliamentary ‘grilling’ sitting confirming that the Opposition have no trust in this man, whatever his capabilities might be, because of the way he was imposed upon parliament by the government of the day. The Commissioner of Police has been burnt out not on the basis of merit – for he might have been the most meritorious of all candidates, at least this is what one hopes in the absence of knowing the actual selection criteria and details – but because of perceived, if not actual, lack of independence, impartiality, neutrality, and autonomy from government in the performance of his lawful duties.
It was also a farce because the parliamentary scrutiny was carried out only by government MPs, needless to say, all being uncritically of one mind and agreeing unanimously and giving the green light to the Prime Minister’s anointed one. The lack of Opposition participation has put spokes in the wheels of government to bestow an aura of legitimacy to the ‘new’ appointment procedure.
It is also a farce that for the initial year of his appointment, the new Commissioner of Police cannot investigate the wrong-doing of government because he has to serve diligently a one year probationary period. In practice this could mean that before any police prosecution is to be instituted, it has first to meet the approval of the Prime Minister or the Minister responsible for Home Affairs, if not of both. Otherwise the probationary period can come to a premature end to the sole prejudice of the Commissioner of Police.
It is a farce because when the probationary period is terminated, there is no need to provide reasons for such termination and how can the Commissioner of Police impugn such a termination of office when he himself does not even know the reasons from termination of appointment?
It is also a farce because the whole selection process has been shrouded in secrecy: we do not know who all the applicants were; nor do we know who was the second candidate that the Public Service Commission had short-listed. We do not know what were the criteria adopted by the Prime Minister to decide in favour of one candidate to the exclusion of the other. We do not even know whether the second candidate was informed that s/he was short-listed so that s/he could seek redress if s/he has a grievance at the decision taken by the Prime Minister. We do not know the rank of the second candidate to determine whether seniority was not considered and why.
It is also a farce that the Public Service Commission did not inform all the candidates of the outcome of the whole procedure before it passed on to recommend two candidates to the Prime Minister.
The appointment of a new Commissioner of Police does not augur well for Malta. It is a farce from the beginning to the end. It has contributed to further politicise the office of Commissioner of Police. How can half of the population have faith in the new appointee when the Opposition have disgraced this appointment? How can the judiciary give credence to the actions of the Police when they think that the Commissioner is the long arm of government? How can we all not state that the whole appointment procedure – Venice Commission notwithstanding – is in breach of the rule of law and the separation of powers doctrine?
Professor Kevin Aquilina is Head of Department of Media, Communications and Technology Law at the University of Malta