Secret Police State in Malta Enacted

Over the past few weeks MaltaToday has raised a number of questions on the workings of Malta’s Secret Service headed by Police Commissioner George Grech. The questions are grounded in the simple fact that the Maltese law was copied from a similar law in Britain, however with grave omissions on the accountability aspect.
After reviewing both sets of legislation MaltaToday found that the British equivalent of the Security Services Act provided for greater accountability and scrutiny of the Secret Service. It seems that Maltese lawmakers decided to omit important parts from the British law when it was transposed to the local context.
The British Security Services Act 1989 sets out a number of mechanisms to ensure proper accountability and control of the Service and its work. Similar to the Maltese Secret Service, Britain’s MI5 is under the authority of the Secretary of State also known as the Home Secretary, which is equivalent to our Home Affairs Minister.
MI5 is led by a Director General who is appointed by the Home Secretary. The Director General is personally responsible the operations and efficiency of the Service and must brief the Home Secretary on threats to national security and economic well being.
The Home Secretary is briefed by the Director General on major current investigations and has a close knowledge of the most sensitive aspects of the Service's work. Warrants allowing the Service to intercept letters or telephone calls, or to interfere with property are personally authorised by the Home Secretary.
Similarly, in Malta the procedure to authorise warrants is vested with the Home Affairs Minister or the Prime Minister.
Considering the secretive nature of the Service, British lawmakers saw fit to introduce three independent structures – the Commissioner, the Complaints Tribunal and the Intelligence and Security Committee - to ensure a system of checks and balances.
The role of the Commissioner according to the British law is to review the Secretary of State’s exercise of the function to issue warrants. This is a similar role to the one enjoyed by the Commissioner in Malta’s Security Services Act.
However, the difference lies in the person occupying the post. The British law states that the post must be occupied by ‘a person who holds or has held high judicial office’, thus ensuring independence from government. This is similar to Malta’s law with exception to a clause stating that if the post is not appointed it will automatically be filled by the Attorney General. Having the Attorney General occupy such a post is a questionable aspect. It must be pointed out that the Attorney General represents government and assists the police in court cases and therefore is not independent from government.
However, more serious than this is the fact that the Maltese Commissioner – not to be mixed up with the Police Commissioner – is the person vested with investigating any complaints made by the public about the Secret Service. British lawmakers created a separate body, the Complaints Tribunal, to handle complaints about interception or misconduct. Maltese legislation does not talk about an independent tribunal.
The Tribunal is distinct from both the Home Secretary and the Commissioner and consists of three senior members of the legal profession appointed by the Head of State - the Queen, which in our case would mean the President of the Republic - for a five-year period. The Tribunal may visit the Service and examine its records as necessary as well as question MI5 staff.
The third safeguard found in the British law relates to the Intelligence and Security Committee. This committee has the role to examine the expenditure, administration and policy of the Security Service. It is composed of nine parliamentarians who are appointed by the Prime Minister in consultation with the Leader of Opposition. None of the Committee members may be a minister.
In complete contrast the Maltese equivalent, the Security Committee is composed of the Prime Minister, the Home Affairs Minister, the Foreign Affairs Minister and the Leader of the Opposition. It must be noted that the Committee is entrusted to examine the policy of the Secret Service. However, there is a conflict of interest between the dual roles of both the Prime Minister and the Home Affairs Minister. They are the people responsible for authorising warrants and they also sit on the Security Committee, responsible for overseeing the actions of the Secret Service.
The MI5 official web site states that the controlling mechanisms ‘have been considered and endorsed by the European Commission on Human Rights in a number of applications under the European Convention on Human Rights arising out of complaints to the Security Service Tribunal.’
In addition, the web site states that the MI5 does not have an executive role. The Security Service is a ‘civilian organisation and its officers have no executive powers, such as the authority to detain or arrest people.’ The web site points out that the MI5 is not a 'secret police force', although it shares its information with the police or other law enforcement agencies when there is a prospect of arresting criminals.
In Malta, this distinction may be blurred considering that the head of the Security Service is also the Commissioner of Police. Legal sources have pointed out that the two roles are of a conflicting nature. It is unclear whether Malta’s Secret Service describes itself as a ‘civilian organisation’ with no executive powers, like the MI5. But if it is so than there is definitely a problem with having the Police Commissioner – an executive role – occupying the post of head of the Secret Service.
The MI5 web site can be found on the following address: http://www.mi5.gov.uk/index.htm