No response to UN expert’s call for Security Service overhaul

The Maltese government has not responded to a call by the United Nations special rapporteur on privacy, to place the activities of the Security Service under the review of an independent regulator, last made in December 2019.

Since then, Prof. Joseph Cannataci, of Malta, has sent a reminder to the Maltese government in April 2021, calling once again for the introduction of an independent regulator for the Security Service.

Cannataci, an independent expert appointed by the United Nations’ Human Rights Council in 2015 in the wake of the Snowden revelations over surveillance, submitted a detailed proposal for the overhaul of Malta’s Security Service following the arrest of Yorgen Fenech, the alleged mastermind in the Caruana Galizia assassination.

Cannataci believes the Security Services could suffer from conflicts of interest, especially where the role of ministers and the Prime Minister is concerned, because the MSS remains under the purview of the home affairs minister.

Malta recently ratified the Protocol amending the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, which Cannataci called a clear example of Malta’s reinforced commitment to the rule of law.

But Article 11 of this same treaty also binds Malta to “the requirement that processing activities for national security and defence purposes are subject to independent and effective review and supervision under the domestic legislation of the respective Party”.

Malta however does not have a system in place which would pass muster for the “independent and effective review” of data processing by the Security Service.

“I take this opportunity to very strongly recommend that your government introduce without delay the much-needed changes in legislation resulting in the creation of properly resourced, fully independent structures,” Cannataci told Prime Minister Robert Abela in a letter.

Among his recommendations are the creation of an independent Security Commissioner responsible for approving interception warrants and other activities of the Malta Security Service (MSS). Currently, such warrants are issued by a judge.

He also proposed the creation of a Security Service Oversight Board consisting of three serving or retired Judges tasked with oversight of the Security Commissioner and the MSS, as well as with dealing with complaints from the public about the MSS; and the change of ultimate reporting lines for the MSS from the Prime Minister to the President.

Cannataci also proposed the expansion of the President’s powers in appointing the Head of the MSS, the Security Commissioner and the Security Service Oversight Board, and an increased constitutional role for the President of the Republic with regard to the operations and findings of the MSS.

Malta employs an independent Commissioner – usually a retired judge or the Attorney General – to receive complaints from the public and to review the home affairs minister’s exercise of the issuing of warrants for interception.

While the position is required to be held by a person ‘who holds or has held high judicial office’ to ensure independence from government, the law allows the Attorney General to fill the post if it has not been accorded to a retired judge – a questionable aspect when the AG represents government.

Malta’s Security Committee is composed of the Prime Minister, the Home Affairs Minister, the Foreign Affairs Minister and the Leader of the Opposition. Given that the committee examines the policy of the Security Service, there is a conflict of interest with the fact that the Home Affairs Minister is responsible for authorising warrants whilst overseeing the actions of the Secret Service.