The Venice Commission had recommended that “there should be a public competition for the post of police commissioner and the appointing authority (prime minister or president) should be bound by the results of the evaluation of that competition, even though they might have a power of veto against the candidate selected. This recommendation holds true even if the powers of prosecution were attributed to a DPP”.
What the prime minister is proposing does to a large extent fulfill the Venice Commission’s above recommendation except for that part where he is stating that he will renounce to exercise the power of veto. If he elects to select the candidate placed second, he will be automatically vetoing the first candidate, that is, the Public Service Commission’s preferred candidate.
The Public Service Commission invariably ranks candidates in its appointment selection procedures, contrary to the Judicial Appointments Committee which does not. Not exercising a power of veto means that the prime minister would accept point blank the Selection Board’s result as presented to him by the Commission and would be obliged to recommend to the House the candidate placed first.
There would therefore be no need for the prime minister to be presented with two candidates to choose one because by renouncing the veto he cannot select the candidate placed second when the occasion arises.
Indeed, the deficiencies of the new procedure which need addressing are the following:
First, the Public Service Commission is not an independent authority once two of its members are chosen by the government, another two by the Opposition and the chairperson is a government nominee. This Commission does not represent the public interest as the Constitution dictates but the bipartisan interests of the government and of the Opposition of the day, with the final say vesting in the government appointees.
Second, the main thrust of the Venice Commission’s report was that the prime minister currently enjoys exorbitant powers in the appointment of public officers and other public sector officials and that these powers should be reduced, not retained or augmented. Hence, the prime minister should preferably not be involved at all in the appointment process of Commissioner of Police.
Third, MPs are not being allowed to vote on the person who was placed first in the competitive process if the prime minister opts to submit the name of the person placed second. Nor does it appear that MPs will know who was placed first, what marks candidates obtained, and why the PM opted to recommend the person place second and not first for approval by the House of Representatives or a Committee thereof.
Fourth, there is no transparency in the matter, for the MPs will not know who was placed first or second by the selection board, what points they obtained, and they will not be privy to the selection board’s report.
Fifth, as the prime minister enjoys a majority in the House of Representatives or in any committee thereof, and as the House or committee will not be approving the commissioner of police by a two-thirds majority, it is the government who in actual fact decides who is to be appointed commissioner of police.
If the Opposition votes against the prime minister’s candidate, then the selected candidate will be burnt from day one as he or she would be considered untrustworthy by half of the country up to the day they leave office, even though they might be the best for the job.
During tenure of office, the selected candidate will be subject to adverse criticism and, inevitably, will not end up enjoying that support and serenity of work that this office requires. Past experience is pointing in the direction that the office of the commissioner of police needs to be totally depoliticised.
Sixth, as the position of commissioner has in the past been subject to considerable controversy, a method of selection needs to be adopted which ensures that the commissioner is not considered to be a government puppet but a totally independent and autonomous public officer more on the lines of the judiciary.
The method of selection should not therefore be by government, or by the prime minister on behalf of the government, or by parliament by means of a simple majority vote where the government still calls the shots.
It should either be by at least a two-thirds majority of the House of Representatives or else by a reconstituted Judicial Appointments Committee whose membership is changed so that the judiciary will enjoy majority membership and have the final say in the selection process. The less government interference there is in the selection process, the better.
Finally, all measures proposed by government to purportedly implement the Venice Commission report should be confirmed by the Venice Commission that they are in line with its recommendations. Otherwise the Council of Europe will criticise Malta that it has not complied with the spirit of the Venice Commission’s report.
Kevin Aquilina is Head of the Department of Media, Communications and Technology Law, Faculty of Laws, University of Malta.
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