The French expression ‘plus ça change plus c’est la même chose’ means that the more things change, the more they remain the same. This is the case of Bill No 113 of January 24, 2020, the Bill to amend the Police Act, Chapter 164 of the Laws of Malta, published in the Government Gazette of Malta, No. 20,336.

In terms of this Bill, the office of the police commissioner will end up being a politicised office where the chosen candidate will still continue to be selected by the government of the day, notwithstanding the apparent involvement of the Public Service Commission (PSC) at the initial stage and of the House of Representatives in the decision-making stage.

First, the PSC, irrespective of its inbuilt politically partisan composition, will not be the final decision maker on the appointment of the commissioner of police. It simply recommends two candidates for appointment to the prime minister.

Second, the Commission is not being requested – out of synch with standard procedure – to inform the prime minister of the ranking of the selected candidates placed first and second, even though, for its own internal proceedings, the Commission would still have to somehow rank all applicants in order to arrive at a shortlist of two candidates. Even here it will surely have its own preferences for one candidate over another.

Third, as the selection process is not transparent, neither the first two candidates, nor the Cabinet ministers, nor the MPs who sit on the Standing Committee on Public Appointments will know the ranking of the two selected candidates. Nor will they be privy to the Commission’s Selection Report as there is no statutory obligation for its divulgation to the prime minister, Cabinet and the Standing Committee, let alone to the candidates concerned.

The end result is clear: the decision-making is acting out of statutory blindness. Secrecy breeds suspicion; suspicion breeds mistrust; mistrust breeds fear of abuse of power; fear of abuse of power breeds arrogance; arrogance breeds bad governance and maladministration.

Fourth, in routine selection cases before the PSC, it is possible for unsuccessful candidates to challenge that selection in terms of Commission regulations. But with the decision-making process being divested of the PSC’s remit and regulated under a special ad hoc law rather than under the general law, aggrieved persons will not enjoy a remedy against the PSC’s recommendation.

Nor is it possible for an aggrieved person to appeal Cabinet’s decision and/or the Standing Committee’s decision before the House of Representatives. Nor does the Bill outline the procedure for applying for a remedy in the case of an injustice. The PSC will not be acting in terms of its regulations but in terms of a special law – one intended to deprive applicants of any rights to a remedy in case of an injustice being perpetrated by the Commission and/or Cabinet and/or the Standing Committee.

And what happens if an aggrieved person sues out a warrant of prohibitory injunction to halt the whole selection process when the Commission and/or Cabinet and/or the Standing Committee are seized of the matter and the court accedes to such request?

Does this mean that the government will have to await the outcome of all the litigation proceedings before diverse courts – in Malta and abroad – before it can fill a vacancy?

Fifth, it is not clear what the remit, if any, of the Parliamentary Ombudsman will be in the selection procedure. Will the Ombudsman have jurisdiction over the entire process such that he can conclude that the PSC and/or the Cabinet and/or the Standing Committee have committed an injustice?

Where he to recommend a remedy, how would that work out? Would it be the Standing Committee that decides whether to adopt the Ombudsman’s recommendation? References in the Bill to the Ombudsman Act are conspicuous by their absence.

The office of the police commissioner will end up being a politicised office

Sixth, once government wants to retain full control over the selection process, while giving the impression that the decision is in fact a parliamentary one with the involvement of all the two other organs, it turns out that it is the government of the day, not the Commission or the Standing Committee, who will have the final say in the actual candidate selection.

But still, it has to be kept in mind that both on the Commission and on the Standing Committee, the government enjoys a majority of votes.

So why does change matter when the end result will always be the same? Plus ça change plus c’est la même chose!

Seventh, have the Office of the Ombudsman and the Public Service Commission been consulted prior to the publication of the Bill? If so, can their responses be published for public consumption? My gut feeling is that government has consulted none.

Shouldn’t these constitutional institutions have been consulted before the Bill was approved by Cabinet for their input, especially since they might be affected by its provisions? Both institutions would at least have had the opportunity to draw Cabinet’s attention to the weaknesses of the Bill, at least from a procedural perspective, if not from a substantive one.

Eighth, there are also separation of powers and rule of law issues which have not been considered. Has the Venice Commission been consulted in relation to the separation of powers and rule of law aspects of this proposal?

Michael Forde (Constitutional Law of Ireland, 1987, p. 95) correctly remarks that: “A central feature of Montesquieu’s theory of the State was the separation of powers; that all public powers should not be concentrated in one person’s hand or in one institution, but should be allocated between different branches of government”.

At present, all power is vested in the prime minister. Needless to say, in Malta, we do not have a system of separation of powers but one of concentration of powers in the hands of the prime minister, as the Venice Commission report observed in relation to the status of the rule of law in Malta.

Ninth, what happens if the Public Service Commission does not present a recommendation in the case that no person meets the selection criteria, or nobody applies for that office? Will the criteria be lowered? Will new selection processes be launched until a suitable candidate is found? Will the prime minister have recourse to direct appointment? The Bill has opted to exercise its constitutional right of silence on these matters!

Tenth, although the PSC will issue a call for appointment to the Office of Commissioner of Police stipulating therein “the necessary qualifications and experience required” for appointment, will Cabinet and the Standing Committee be bound by these criteria? There is no mention in the Bill to that effect. It could therefore work out before Cabinet and the Standing Committee that the PSC’s criteria are substituted by political (read ‘politically partisan’, as we have been accustomed to under successive governments since independence) criteria?

All in all, change for change’s sake is a non-starter. Reforms should not be made in haste but following consultation, discussion and research. This reform will make matters worse than before because, where there is a divided vote in the Standing Committee, it will contribute to institutionalise in the selection process the burning out of the selected incumbent from day one. Have we not already been through boycotts, official or unofficial, of a president, prime minister and leader of the Opposition?

Do we need to politicise the office of the commissioner in such a reprehensible way?

The Bill contributes to having the office of the police commissioner perceived as a politically partisan office, the anointed commissioner seen as a puppet in the hands of the prime minister, totally untrustworthy in the eyes of the Opposition, civil society and the international community, including the European Union, that we form part of.

Where there is no parliamentary agreement on the appointee, s/he will be botched from day one. But is this really what we want for this country?

It should be a reconstituted Judicial Appointments Authority, with a majority of members drawn from the judiciary, that should be tasked with selecting the Commissioner if the deputy prime minister’s and the Opposition’s proposal to appoint him/her via a two-third majority vote in the House (as is the case with the ombudsman, the auditor general, the deputy auditor general and the Commissioner for Standards in Public Life) does not continue to find favour with government.

Kevin Aquilina is Head of the Department of Media, Communications and Technology Law, Faculty of Laws, University of Malta.