Undermining police autonomy | Neville Mercieca

According to the well-known television investment warning, “past performance is no guarantee for the future”.

The same general principle seems to apply to public service employment, too. Perhaps it is an unfair perception, but there is a widespread view that promotion up the salary scale in such institutions as the Police Force is not necessarily related to work performance at all.

It was in part to address this perception that an agreement was recently struck between the ministry for home affairs and the office of the prime minister. According to the new regulations, the appointments of Commissioner of Police, Deputy Commissioner and Assistant Commissioner “are to be made on a performance agreement at par with headship positions [in the civil service]… Hence, it is clarified that these appointments will no longer be considered as grades”.

Minister Manuel Mallia would later defend this agreement on the ground that it would “ensure that the performance of the most senior officers of the police force was continuously assessed and that they continued to give the best of their abilities”.

That, at any rate, was the declared intention. Viewed from another perspective, the same agreement can also be viewed as a direct attempt to undermine the autonomy of the Police Force. 

The Malta Police Association (MPA) issued a press statement to that effect this week, which also indicated that the change from permanent to temporary contracts may even constitute government intimidation of the police: “It is of utmost importance that the highest officials within the force are not conditioned by the fear of being fired from their roles if they take a decision which does not suit the Executive,” the MPA warned.

Similar concerns have since been raised by the Opposition.

I meet the MPA president, Sergeant Neville Mercieca, at the association’s headquarters in Marsa, and in between endless interruptions by telephones armed with every ringtone known to man, we somehow manage to discuss the main issues surrounding this agreement... which in actual fact is an addendum to a previous agreement signed in August 2012.

In what way, exactly, does he consider this addendum to undermine the autonomy of the police?

“Let’s start with a little background. In the civil service, people are appointed to headship positions on three-year contracts, which can be renewed. In the police corps, we are not against that on principle. We certainly don’t agree that just because someone becomes an assistant commissioner, he can simply occupy that position for 10 years without giving something back to society…”

But the new agreement, which came into force on 29 October, seems to supplant existing regulations governing the police force, and as such has created more uncertainty than it clarified.

“We are already regulated by the Police Act, Chapter 164. It governs all aspects of the corps, down to pensions. There are clauses that can be evoked to remove someone from the police force, or for demotions. So we didn’t need this [new agreement] that just came out. If they wanted to amend these conditions they can make the necessary changes to Chapter 164 in parliament – the government has a right to legislate on these matters, we’re not contesting that – but what concerns us are the amendments themselves.

"We don’t want the police to fall under the auspices of the home affairs minister, or any other branch of the Executive. It should fall under the Public Service Commission. For instance, when it comes to the removal of judges, it is not the individual minister who decides. The matter goes to parliament…”

His example might not be the most fortunate one, given that repeated efforts to impeach judges have failed in the past. In fact, while one may certainly sympathise with the MPA’s overall cause for concern – police autonomy being a fundamental building block of the state, and all that – one could also argue that the association’s complaints stem from a desire to retain the status quo. If the MPA genuinely agrees with the declared aims of the new regulations… what would be the ideal way to reach the same objective without jeopardising police autonomy?

“A board needs to be set up. The details would obviously need to be discussed among all the stakeholders: including ourselves, when we become a union, but not just us. There should be a wider discussion on how this will be regulated. What we don’t want is for decisions to be left solely to the executive. We believe the Police Corps should be totally cut off from the executive arm of the state. Not just from the minister or even the government. It could be the speaker of the house, for instance. The problem is that it is not healthy to have one person taking the decisions…”

As for the MPA’s own motives, Mercieca dismisses any notion that the association opposes the agreement’s basic aims. “Of course we agree with accountability; God forbid we didn’t, in 2014. The main problem with this agreement is that it isn’t 100% clear. This is our concern: it’s like the law, which is subject to interpretation…”

The actual law, however, is a good deal more detailed than the addendum which supplants it. Quoting again from Chapter 164, Mercieca traces a clear chain of command in the decision-making process governing appointments and conditions of different police ranks.

“It says that the decision is to be taken by the PM after consultation with the Public Service Commission. As you know, the PSC board has members of both government and opposition. There is a divergence of opinion. The advice given to the PM would be the result of agreement between different positions. It is fair that way: the PSC is balanced…”

Mercieca seems to be suggesting that there was no need for any new agreement at all, given that the situation is already well regulated at law. How, then, does he interpret this development? Does he suspect any ulterior motives?

He shrugs. “All I can say is that I did not know about this agreement until now. As for ulterior motives, no, I don’t think anything like that. It’s not the same for a policeman to suspect ulterior motives. If I did suspect anything, I would have to investigate it as a possible breach of law. I can’t ‘suspect’ anything in that sense, without valid cause...”

Meanwhile, however, there is also a certain consistency – for better or worse – in the present administration approach to such matters. At the risk of playing the devil’s advocate: the Labour government was elected in 2013 precisely on the expectation that it would reform certain sectors, including the police.

"One of its earlier interventions was a surprise visit by the home affairs minister to the Corradino Correctional Facility, which exposed certain shortcomings and led to certain administrative changes. So couldn’t this move likewise be interpreted as a more hands-on attempt to address similar shortcomings in the police force? 

“We have no objection to that. The minister can come to the depot, too. It’s not a problem. And we agree that there has to be more accountability. We don’t want a situation where an officer is promoted to the rank of sergeant, just to get comfortable, make coffee, wait until the end of his service and retire without doing anything. But at the same time, our interpretation of this agreement is that it will be only the minister, a representative of the executive, who will decide… or any one person. It won’t be a board which reflects diversity of opinion, like the PSC…”

Inevitably, the MPA’s objections to the recent addendum also highlight another of its long-standing concerns: the fact that the Malta police force, unlike some of their equivalent forces in other European countries, is denied the right to collective bargaining.

For this reason, the MPA had no direct input in either the 2012 agreement or the recent amendments. There is however a difference between the two scenarios.

“With the agreement of 2012, we got certain allowances we didn’t have before. Certain anomalies in the salary scale were rectified. When the negotiations were going on, we were never involved in the sense that we signed the agreement, or anything like that. But back then John Rizzo, who was police commissioner at the time, would be present at the negotiating table…”

Did he consult the MPA? “Yes, he would come to us and say: this is what is being proposed, what do you think? So even if these agreements don’t have our signatures as MPA, step by step we knew what was happening throughout the entire process…”

And the MPA agreed with those conditions at the time…

“We agreed, but not with everything. Obviously we had our own bargaining position… if we asked for 10, we got five… but we can’t argue with that; there was input from our side, and we got part of what we wanted. But this,” here he indicates a print-out of the recent addendum on the table, “this was added onto an agreement which we had been involved in. So what we had agreed to has now been changed. And we don’t know anything about this change. We don’t know who was consulted, how it was agreed… we’re not even sure who it applies to…”

Has the MPA raised this concern with either the minister or the police commissioner?

“Here, there is another complication. We communicate with the minister and with the commissioner, yes, but we also have the Police Negotiations Board, set up by Chapter 164 in 2002. Officially we have to go to the PNB to negotiate...”

Apart from an independent chairman and four MPA members, this board also includes the permanent secretaries of the home affairs ministry, the office of the prime minister, the finance ministry and the ministry of industrial relations.

“We have already asked for a meeting [to discuss this agreement], but naturally a date for this meeting still has to be set. Yet the new agreement is already in force: here it says, ‘the effective date of the provisions stipulated in this document shall be the date of signing of this addendum’. And it’s already been signed…”

Mercieca’s main bone of contention with the PNB, however, is that the past performance of this negotiating board is certainly no guarantee of future success. “Before 2002, we had nothing at all. In 2002, the PNB was set up, along the lines of the British system. The only problem we have with it, is that there are outstanding issues that are still pending since 2002…”

Mercieca produces another ream of papers, one of which indicates the six main demands his association has been making for the past 12 years.

“The first of these is the right to hold down part-time employment…” He pre-empts my question regarding whether this is actually a good idea, given the propensity for conflicts of interest that comes with the role of policeman. “Obviously we understand that ‘part-time employment’ would not include working as a bouncer or private security. But there are jobs that can be done part-time without any conflicts with the role of the police…”

He moves on to demand number two: “extra duty taxed at 15%”.

As examples of ‘extra duty’ he cites sentry positions at a bank, or police presence at a wedding. “Obviously, the state does not pay for these extra duties. What happens is that the payment is made to the commissioner, who then passes it on to us in our salaries. We can’t be paid directly, for obvious reasons. But that is our part-time work at present. So why is it added comprehensively to our salary package, and taxed comprehensively at 32%? We want extra duties to be taxed separately at 15%...”

The MPA is also demanding a 40-hour week. “How is it that the police falls under the civil service, but unlike the rest of the civil service we work 46 hours a week? On the same salary scale? I am scale 11, for example. Across the road there is MEPA, also part of the same salary structure. Why should someone there earn the same wages as myself at scale 11, when I work six more hours a week than he? Never mind the nature of the work itself: we are talking about basic work conditions here…”

Other demands include a reform of pensions, adequate health and life insurance, and allowances. And all of them have been on the table, so to speak, since 2002, with no progress anywhere in sight.

Understandably enough, then, Mercieca is not optimistic about discussing this latest complaint under the auspices of the same PNB.

“What worries us more, however, is that this agreement, which as I said is unclear, may also have unforeseen consequences. What will happen in certain court cases – and we have such cases going on right now…” he breaks off in mid-sentence.

“I can’t give details of ongoing cases, but let’s take a hypothetical example. We have so many ministries in this country… let’s say, for argument’s sake, we had a ‘Ministry for Doors’. Imagine the police are informed that the ‘Minister for Doors’ is bringing in contraband merchandise. Or someone in his family is involved in something illegal. As police, we would have to investigate that. But what will happen as a result of this agreement? You might think, ‘my contract will be up for renewal in a few months…’ It might affect the decisions you make, and the way you approach your job. That is why we insist that the police must be totally autonomous from the executive. This agreement undermines our autonomy in that sense.”