‘Two-thirds majority proposal’ will not work

OK, let me start by stating what should be (but very clearly isn’t) the obvious. The idea to appoint the Police Commissioner and Attorney General by two-thirds parliamentary approval is quite frankly ludicrous. In fact it almost beggars belief that so many supposedly intelligent people can’t immediately spot the many, glaring and positively dangerous pitfalls it would create.

It fell to retired judge Giovanni Bonello to point out the most immediate practical flaw. These were his exact words: “On paper, the proposal looks flawless. In practice, I believe it will not work at all. How are government and opposition to agree on the right person for the right job? For a person to be acceptable to both parties, presumably he must have the appearance of political neutrality and impartiality - that means he must be manifestly apolitical […] Now my Malta experience has taught me that those persons who claim to be apolitical are the craven without any sense of commitment, the weaklings, the opportunists, the unprincipled who always have an eye on where the wind is blowing. Do we want one of these to be Attorney General or Commissioner of Police? What difference would that make from the ones we have today?”

Now Bonello is a former European Court judge, and as such he is a tiny bit more diplomatic than yours truly. So allow me to translate that second part into something a little more blunt. 

Under the system so foolishly being proposed, all it would take for a new Police Commissioner and/or AG to be appointed is a backroom deal between the Prime Minister and the opposition leader. In the present scenario, that would mean a cosy little arrangement engineered by Joseph Muscat and Adrian Delia, for their own mutual benefit. 

Strangely, the people who insist on this system do not seem to trust either Muscat or Delia.  And they have good reason not to: both have been implicated, to varying degrees, in money-laundering activities. So what better way to ensure that neither of them ever gets properly investigated, than to entrust the selection of the Police Commissioner and AG to... themselves?

My, what a stroke of genius. And there I was, thinking the whole point of those public demonstrations was to move away from a situation where two hopelessly corrupt political parties get to decide absolutely everything in this country. (This, by the way, was the implicit significance of Daphne’s ominous last words, which so many repeated after her death. ‘There are crooks everywhere you look’. Emphasis on the word ‘everywhere’... which, by the time she wrote that, also included the opposition).

Yet what is the ‘Civil Society Network’ actually suggesting? That we not only retain a system that empowers ‘crooks’ to choose Police Commissioners and public prosecutors... but we strengthen that system, to the point that it becomes all-but impossible for future generations to even rectify the mistakes we make today.

This is, in fact, the most worrying aspect about the whole idea: the total absence of anything resembling foresight. Joseph Muscat and Adrian Delia are not permanent features of the political establishment. They are here today, gone tomorrow. The systems we create now, on the other hand, will continue to apply to future compositions of parliament, long after today’s actors have exited the stage.

More to the point: the two-party system that we have all grown accustomed to since Independence is itself equally transient. It might take longer to pass into history, but there are already indications that it will not last. Today, there are three parties represented in parliament, not two. One of those three – the main opposition party – looks like it might split into two any moment.

Even without that consideration: who is to say what the political landscape will look like in 10, 20 or 50 years’ time? How would the ‘two-thirds majority’ proviso actually work, in a future Malta where there could be six, seven, eight or more parties represented in the House? And what if one (or more) of those parties represents the extreme right, or some equally contentious political viewpoint? We could end up in a situation where the appointment of a Police Commissioner would require the approval of Norman Lowell (or his equivalent). Did any of the people making this demand stop to think about that even for half a second?

Doesn’t look like it to me. And there are other, more practical issues to be contemplated. Securing a two-thirds majority is hard enough when only two parties are required to reach an agreement. On Constitutional matters (where, in some cases, this mechanism already exists) it has almost consistently proved elusive. One rare example of cross-party consensus to change the Constitution goes back to 1986: and even then, only to avoid a repeat of the 1981 election result (and in the process, to avoid the possibility of a full-blown civil war).

The example is worth revisiting today, because... well, just look at the mess that agreement created. Thanks to a backroom deal negotiated between Dom Mintoff and Guido De Marco, we are left with an electoral law that does not even contemplate the possibility of a third party in Parliament. This has created a permanent injustice within the structures of our democracy... one which everyone now recognises, and agrees should be amended.

But oh look... you need a two-thirds majority to change that part of the Constitution, too. And what a surprise: there are two parties currently enjoying the benefits of this horribly anti-democratic law, and – by a remarkable coincidence – neither has ever tried to change it over the past three decades.

How, then, is the two-thirds majority mechanism supposed to ‘solve’ the current problems regarding public appointments? Why would it not create the same problems that we are already experiencing with electoral law?

On a separate level, the argumentation underpinning this proposal is completely unsound. Here I shall have to respectfully disagree with Bonello: the proposal does not look ‘flawless’ on paper but it is, indeed, on paper that its biggest flaws materialise.

The whole point of a reform of the Police Force is to strengthen its autonomy. The police are supposed to be independent of the other arms of the state: the executive (government), and also the legislature (parliament). This does not mean that neither of those two institutions should have a say in such appointments... but it does place immediate (and absolutely vital) limits on the precise extent to which they can interfere in the selection process.

It is, in a word, entirely mistaken to assume that parliament should have the automatic right to appoint a police commissioner: with or without a two-thirds majority (Note: I am limiting the rest of this piece only to the Police. The situation with the AG is more complex, as there is also an inherent conflict of roles that has to be ironed out first. In our system, the AG is both legal counsel to government, and chief public prosecutor. Until that mistake is rectified, the issue of how AGs are appointed is of secondary priority).

This is a convention we all already recognise when it comes to the judiciary: that is why we (rightly) objected to a system whereby judges and magistrates were appointed directly by cabinet (i.e., up until last year). Why, therefore, do we not extend the same objection also to the Police Commissioner, whose office is likewise supposed to be autonomous?

OK, now we come to the point where alternative methods must be suggested. For what it’s worth, here is how I think the Police Force should be reformed. 

At present, there is already such a thing as a ‘Police Academy’ housed within the Floriana depot. According to the DOI, it offers “courses for new Police Recruits; monthly in-service refresher courses for police sergeants and constables; courses for Police Inspector Cadets; courses for Constables to be promoted to Sergeants; specialised courses as required by the Force.”

I suggest we strengthen that institution so that it also offer courses for prospective Police Commissioners...  and replace the current system of executive appointments with one comparable to that already introduced for judges and magistrates. To become commissioner, one must first acquire the necessary qualifications for the post (which would include a degree/diploma from the Police Academy, and also the necessary rank through a system of internal promotions).

It is then – and ONLY then – that other institutions come into play. What I’d like to see is a parliamentary committee scrutinising the prospective candidates in public. (This was, incidentally, an electoral promise made by both parties at the last election). Once the candidates have been duly grilled; their credentials questioned, their assets/liabilities determined, and their general suitability for the post adjudicated... the new Police Commissioner should be approved in parliament, by simple majority.

There. I think that makes much more sense. It is a system that does not allow one branch of the State to usurp the administrative powers of all the others... and it would (or at least should) result in more trustworthy incumbents, too.

But of course, I could be wrong. So I’ll just leave it to all the legal and political experts to tear my proposal to pieces, as I have torn theirs.