23 - Peter Paul Zammit

Peter Paul Zammit The Police Commissioner - An unregulated officer of the law?

Peter Paul Zammit is a warranted Legal Procurator, having graduated with a B. A. in Legal and Humanistic Studies in 2000. He served within the Police Force for 25 years retiring from active duty in 2009 and taking up private practice. In 2013 he was recalled to the Police Force and appointed as Police Commissioner. He resigned his commission in 2014 and again went into Private Practice

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1. Introduction

T

he present conundrum about the institution in office of a Police Commissioner is one fraught with hidden traps, shortcomings and legal vacuums. These obstacles do not include the myriad of political issues which, unsurprisingly, come as part of the package in such a discussion, and these are best left aside for now.

There has been plenty of debate with regards to the manner in which such a position is to be filled. In my view, the question which should be of primary importance is not how to elect such an officer, as is being bandied about, but in effect what are the actual duties, rights and obligations that such an office carries. In common parlance, we need a job description.

Looking at the present legal situation, we see that there is one duty assigned in the Police Act, and that the Police Force is under the direction of a Commissioner:

There shall be a Commissioner of Police, hereinafter referred to as “the Commissioner�, who shall be commissioned for leading and guiding the Force, as well as regulating the appointment, duties and discipline of the Force.1

2. The (chaotic) historical metamorphosis of the Police Force Unlike all other heads of departments within the Civil Service, and Government in itself, there are no established rules or procedures of governance related to the manner and conduct in which the Commissioner of Police should behave and act. The reason for this is an historic one, since such office has always been at the behest of either the Crown or the Prime Minister, and that back then, the Commissioner of Police was in effect the general factotum of all major national security issues, and many more besides.

From then on however, things have changed and evolved in a myriad

1

Police Act (Chapter 163 of the Laws of Malta) Article 6(1)

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of ways. Nowadays, a number of security issues are handled in a different manner by diverse entities and are no longer directed or dependent by/on a single person, and as the powers have changed, so is the rest of the police force in dire need of further changes as well. As has occurred elsewhere, the national country’s police force has been morphed into an entity tasked with what are considered as the core policing requirements for the public peace and order.

For comparison’s sake, let us take the police force’s role in the prosecution of crimes. Policing as still practised in Malta, being not just investigative but also prosecutorial, is a thing long left behind in practically the whole world.

The need for a change in this regard is something that I have been personally advocating for more than two decades. Although repeatedly approved, too little to nothing has happened to make the requisite difference in the current structure of the Police Force. A separate Prosecution Service needs be set up, and this without any more delay.

Immigration and port control in Malta are still basically a Police responsibility, but should it remain so? In the past, we used to argue about duplication of work. Now, we need to argue more on the basis of separation.

The reasons for this are very simple: whilst the general Police duties deal with social crimes and contraventions, those dealing with immigration and port controls are often dealing with refugee and human situations, which are far from criminal in their core substance. One may also make the argument, one which is extremely valid in my judgement, that the aims of the officers responsible for these two crucial issues are very specific and tailored for the situation, and may require an understand, and a set of legal, material and emotional tools that are incompatible with what the core role of a police officer actually is. Also, while in theory we can suggest that a police officer can and should be trained sufficiently in confronting these situations in an equally level-headed and legitimate manner and conduct, in practice this is tantamount to structuring the recruitment branch of the police force in a way that produces new police officers with two hats, and two different settings, to be used in different circumstances: an impractical, laborious enterprise doomed to fail.

In the present day, the Maltese police force is also still burdened with diverse licensing issues, be they firearm, explosive or simply hunting licenses.

Again, there is no reason why the issuing of these licenses should remain the 127

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remit of the Police Force.

The aforementioned roles of the Police Force are all remnants of regulations past. A look at the history of the organisation would clearly indicate how in the past, this used to be much worse. For example, when the Commissioner of Police was the sole licensing and regulatory authority for all commerce. Remnants of these scattered responsibilities and regulations are still found within the Code of Police Laws.2 Buildings and construction enforcement were, until a short time ago, still fully regulated under this Act, while serious health issues as well as the enforcement relating to the Court Registrar’s responsibilities are still therein contained.

This is indicative of the generality of changes which need be made, included or removed accordingly in the job description of the Commissioner of Police.

3. The case for Reorganisation, Remodelling and Repurposing, and why it should start at the very top The first question that arises is: ‘What do we want the Police Force to do?’

Said question can be quickly followed by: ‘In what manner is this to be done, and what are the necessary controls that should be imposed on the police force in a democratic country?’

Policing in Malta needs to be legally defined in a manner to remove all the non-core policing factors out of the present structure, leaving the Police to effectively police. If there needs to be civilianisation of the numerous jobs within the Police Force, then this should be carried out. Other police forces, which are much bigger and more complicated than ours have gone through this process: so what is holding the Maltese Police Force from following suit?

Other tasks which are presently the responsibility of the Police Force should also move to other departments and organs. Do we still need the issuance of the Conviction Sheet, as well as a person’s certificate of conduct, to be held by the Police, when the repository of the sentences is the court? Such changes may be contemplated by the present Administration, and rightly so,

2

Code of Police Laws (Chapter 10 of the Laws of Malta)

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but this should be done with caution. The process should be streamlined, ensuring that this is carried out in the interest of all concerned. Access to this data is of utmost importance in enforcement, so if one is intending to have proper enforcement, one needs ensure that the necessary information is available. This does not mean that the Police should lose the right of access to that data, because that would mean undermining their regulatory powers, and robbing it some of its necessary tools in proper policing.

When we have managed to redefine and apply core police duties, then we can start to write down the job descriptions of all members of the force, including that reserved for the Commissioner of Police. This exercise was commenced quite a few years back, but then the sails lost the wind of change, and the gradual modernisation of the Police Force reverted to being a haphazard mess and individual, arbitrary decisions. The same liberation which opened the doors for a number of willing officers within the Police Force to attend University, and from a number of others to attend specialised training abroad, suddenly died down to a barely felt breeze, and the sails fluttered down to a ghostly appearance. Notwithstanding the fact that a few individuals have braved the opposition and managed to secure for themselves laurels of knowledge not provided for through the Police system, this is unfortunately the exception and not the rule, a trickle compared to the river needed.

The redefinition of core policing duties will bring about a new form of administration, one based not just on, seniority, but on proper management and a system of planned progression, where the future commanders and leaders are moulded within the structure, in conjunction with universities and other forces. In doing so, we will be eliminating the present fear of being ousted from their jobs felt by senior officers, to one where capacity building and training the leaders for tomorrow is actively carried out.

Building a strong police force need not be creating a police state. The rule of law requires that powers are curbed by obligations and effective remedies.

The present Police Board set-up is a far cry from being an effective police overview tool and needs to be seriously revisited, from its legal foundations to its assigned executors and workings. A stronger, more concrete, more legally visible relationship of said board and the Commissioner of Police is also to be written whenever such a change is being considered.

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4. Wanted: A public job description and interview process Much has been advocated recently about the mode of procedure to fill in the post of Commissioner of Police. Is there truly such a need to reinvent the wheel? A quick look around other democratically recognised countries, and the system of political appointment to this post is commonplace.

It is generally felt that this post, amongst others, cannot be of a different disposition than the current administration, or at least there needs to be a common ground on the way forward. The wellbeing of society and the said Police Force is a must to ensure the necessary trust in such workings.

Therefore, what we need to clarify is the agenda of proposals being made and agreed to, between Government and the Commissioner of Police and the respect of the law and all persons in the carrying out of Police duties.

Having had a precursory look at what needs be done a priori to appointing a Police Commissioner we need to go over how this is to be done. If, as is being proposed, the system of appointment becomes a committee hearing similar to that being tasked in the judiciary appointments (to which I agree) and this actual appointment is of a public nature, then remuneration and removal should be on the same par. It is thus suggested that the post becomes constitutionally protected and entrenched to ensure that the post is free from undue pressure and influence. After all, the power being wielded is considerable, and at par with judicial powers, as by law, he’s required to be: as a first guarantee of the rights of all persons in Malta, even before action is needed through the judicial system to repress, sanction or remedy any breach;3 The recent ECHR decision in Grace Gatt vs Malta4 points to irregularities practiced both in discipline and governance, within the Police Force and Government. This follows a myriad of decisions against Malta in HR issues, all pointing at serious shortcomings in policing. Some have been partially addressed, years after the incidents occurred, mostly also years after the sentence was delivered. This delay, while seemingly in the right step, has been a long, drawn-out journey, and a true representation of the famous maxim: ‘Justice delayed is justice denied.’ The reasons for the taking of the decisions subsequently impugned by

3 4

Police Act (Chapter 164 of the Laws of Malta), Article 4A Grace Gatt vs Malta App no. 46466/16 (ECtHR, 8 October 2019)

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these cases is not important in this case. What is important is that we have been for years emulating the ostrich and possum: Hiding our heads and playing dead is not meeting the social legal demands. Our dismal Human Rights record at the ECHR should make us all blush and bow our heads ashamedly. Those of us who hold our legal profession to heart know full well the extent of such decisions, from resisting with all our might the right to legal advice under interrogation, to failing to give due notice of rights to would be refugees.

I believe this is the time to act, when the situation is at its lowest, the power that be needs to brush itself up and get moving. Being proactive is what the law requires, and this cannot be met if we simply play musical chairs, or we seek to appoint the most senior, but neither can the post of Commissioner of Police be filled without the job description being made available publicly.

Let there be a public hearing, properly organised to weed out chaff from prospective applicants and helping to establish the best person for the job.

I believe that like in all things, there are enough good people about who can give their tuppence worth of advice on the matter, and let it be recorded that advice was sought and advocated from all parts of society. If a white paper needs be set out, let us get on with it. The Venice Commission can and does give guidelines, but they are still that, guidelines: we need a fullbodied setup to get our act in order. As has happened in the amendments to the Criminal Code5 which introduced the greatest single administrative set of rules to police work, this can be repeated in properly outlining police procedure and administration, weeding where necessary and nurturing the good we already have.

The first task is therefore to define the post, in as solid a legal manner as possible, with the second task being establishing guidelines for the public hearing of such appointments and the third task is in appointing an effective review mechanism to ensure transparency and accountability of the post.

An interim measure would be to appoint a taskforce to head the necessary changes, take full control of policing and ensure the changes are carried out and given full effect. That being said, this does not need to stop there. This self-same task force should be charged with the continued development of

5

Criminal Code (Amendment) Act, Act III of 2002 <https://parlament.mt/me-

dia/1079/iii-of-2002-criminal-code-amendment-act.pdf> accessed 2 February 2020

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the force and thus ensure the continuity of change and development which in today’s world is ever so fast changing, while making sure that the winds keep blowing the sails.

5. Conclusion Malta is not unique to the world. What is close to unique is our small size.

The advocated changes have already been progressed to by a multitude of other countries. And it should not be difficult to follow suit, albeit cutting the suit to our size ensuring we address the requirements of change and progress in full respect of human rights and the rule of law. Anything less will only be change for change’s sake; the tangible progress will slow down again, and in several years’ time, we will once again be banging at change’s door. Only this time, it would have been too late, and we would be facing an even bigger that the changes required would come at great a cost for our people, and for our country.

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