Position Paper Regarding the Amendments to the Police Act (Chapter 164 of the Laws of Malta)
The Malta Police Association (MPA), through this position paper, is publishing a list of the major changes which are required to the Police Act, Chapter 164 of the Laws of Malta, in order to create a framework that foresees the improvement, progress and innovation of the Malta Police Force, and are inclined towards establishing a working environment that promotes assertiveness, equal opportunities and justice.
The points mentioned in this document refer to the major issues which must necessarily be addressed but do not present all the changes which, in the opinion of the MPA must take place. The proposals in this document refer to structural, operational and procedural changes.
The current legislative framework does not allow for any executive decisions to be taken by any person other than the Commissioner of Police (COP). Article 5 vests the direction, management and superintendence of the Force solely on the COP. Therefore, if a CEO is to be appointed such article has to be amended accordingly, in stating, primarily how such appointment is to be effected and, secondly, his role and responsibilities have to be properly defined.
It is imperative to distinguish between, whether the CEO is competent to issue direct orders to police officers or to the administrative staff and thus be vested with effective executive leadership of the Force, or whether his responsibility and position is that of an advisory role to the COP and thus said CEO will be rendered subservient to the COP.
In the former case, it is crucial to have the law itself defining the exact roles, duties and responsibilities of the CEO and what implementations are expected of him. In the latter instance, it might still be necessary to identify the instances where the CEO can act out of his accord.
Furthermore, it shall also be made clear how the roles of the COP and the CEO are to interact with each other, and in case of divergences, a mechanism to resolve such conflict might need to be established.
Sections and Districts
To this present day, the Malta Police Force has never established its top management capacity requirements.
Thus the MPA proposes that the main sections within the Force and districts are to be established by law together with its management structures. Specialised sections are to reflect national priorities and be able to change and evolve parallel to society. Districts are to be reviewed and updated reflecting the present population.
The MPA strongly believes that secondary Police Stations are only serving as information centres for the area where they are situated and no actual and effective benefit is being gained by society from their use, as opposed to carrying out police core duties. In this sense, the MPA proposes that secondary Police Stations are either closed or converted into information or civic centres and operated by civilians. On the hand, Police officers should be engaged on active community policing roles like patrols and inspections and be more present in the streets focusing on the protection of the public, crime prevention and rapid response.
Social and Other Activities
Article 9 when read in light of the corresponding margin note, does not allow a member of the Force to carry on any work other than those emanating from the force without a prior permission. The same article also demands that a police officer shall dedicate his entire time to the service of the Force.
In today’s day and age Article 9 needs to be completely overhauled. The interpretation and application of this article also contravenes the provisions of the Constitution itself to the extent that members of the force are prohibited from association to a club such as a sports club, band club or similar activities.
This Article also bars members of the force from performing part-time jobs which may be innocuous in their nature towards the Force.
The MPA appreciates the fact that Police work is of a delicate nature and that a certain gravitas is to be kept by the members of the Force. However a blanket prohibition such as that implemented in Article 9 cannot be accepted further.
The MPA therefore feels that Article 9 should be amended in a way in which it clarifies that members of the force cannot take part in activities that go against the nature of their duties. Subsequently, such responsibility should rest with the officer himself in deciding whether the activity he partakes jeopardises his role as a police officer. Following which he shall be liable to disciplinary action if it is proved that his action bring the Force in ill repute. In this regard, ethical provisions may be introduced to serve as guidance for individuals.
The MPA is also of the opinion that Article 9 should provide a list of what are those part-time jobs that members of the force cannot perform. Such a list would be an exclusive list and jobs not mentioned in said list could be performed by the members of the force. This can be done either by including a list directly under Article 9 or by the attachment of a Schedule.
Reserve Police Officers
In certain specific cases, the faculty of engaging reserve police constables has proven useful. However, like any other engagement, this faculty has to match the requirements of the Police Force according to its priorities.
Article 7 limits the engagement of reserve police officers to the rank of constables. The MPA believes that this article has to be amended as to make the engagement of officers at any rank possible. However, once again being emphasized, the requirements and priorities of the Force or to be pre-identified and the skills, experience and knowledge of the engaged reserve officers must match the needs of the force.
Any engaged officer, unless being engaged immediately, or within a short time, from his service completion is to be given adequate updated training.
Postings and Transfers
Article 10 gives carte blanche powers to the COP when it comes to transferring members of the force. The MPA feels that most of the discontent and apathy found in the police force stems up from the arbitrary and abusive way that this regulation is used from time to time with the consequence that most members of the force fear to invest in enhancing their capabilities since they know that their tenure at a particular posting depends solely on the whims of the COP.
The general administrative principles, including the code of ethics under the Public Administration Act (Cap 497), have proven inadequate measures to protect police officers from arbitrary transfers and this notwithstanding Courts case law.
Therefore to rectify the matter the MPA suggests that Article 10 be amended in a way that controls how transfer of personnel is to be made, and that some criteria in this regard must be established and published.
Chapter 164 should include a provision that states that members of the force who have just completed their basic recruitment training at the police academy cannot be posted to specialised squads and that they have to serve for stipulated minimum amount of time (ex 3 years) in a police district as beat officers.
Thus, all careers within the Force shall commence from district policing. Then police officers shall be given the opportunity to advance horizontally as much as vertically. Transfers to specialised squads are to be carried out by call for application depending the exigencies and capacity requirements of the different units.
Certificates from the Academy for Disciplined Forces or other accredited institutions in relation with the work carried out in that specialised squad should be considered as assets, or even set as essential requirements, in the transferring process. Such transferring/recruitment process is to be governed by an evaluation board in accordance with pre-established rules. Therefore the Police Academy could also from time to time offer specialised ad-hoc courses in relevant subjects for those members of the force who are interested to joining a particular section.
With such a system in place once a member of the force has joined a specialised squad he may fulfil his duty and obligations with his utmost professionalism, knowing that he may exert his full potential free from any fear of unnecessary transfers or arbitrary measures which has been the cause of too much anguish and antagonism in the past and not so recent past.
In the opinion of the MPA the past and present culture found within the police force with regards to transfers should no longer be accepted and tolerated.
Powers and functions of the Police Board are to be further developed. Presently, the Police Board can only issue a recommendation as a means of recourse, but there is no mechanism to enforce the recommendations of such Board. In this regard, the MPA proposes that the Police Board be vested with executive powers rather than the power to make recommendations. This may be achieved by raising the status of the Police Board to that of a tribunal, constituted and regulated similarly to the Administrative Review Tribunal as set up by Chap. 490 of the Laws of Malta. The tribunal is to be presided by a Magistrate and assisted by a panel of members having knowledge in police activities and the Public Service. It is of utmost importance that the members of the panel are competent for the task.
When it comes to discipline and what is found in Articles 31 et seq the MPA feels that the procedure in which disciplinary sittings are heard should be changed. It does not make sense where you are being reported, prosecuted against and judged by the same entity. In view of such the MPA is suggesting that disciplinary sittings are to be chaired by a legal person independent from the police force and whom decides whether the defaulter has truly committed the transgression he is being imputed with or not and in the case of guilt what is the befitting punishment according to law.
In all honesty as things now stand during these sittings no semblance of procedure is being kept, and the appointed officers to chair the sittings lack the necessary knowledge of natural justice and also of the procedural rules set out in Chapter 164 itself. The punishments associated with internal disciplinary transgressions may be as high as a fine of seven days’ pay depending on the seriousness of the disciplinary offence. Thus, the assurance of the independence and impartiality of the judging person, and also of his capabilities, is essential and must be evident.
The amendments proposed shall also include the new set up as to how prosecutions are to be carried out. This demands the rethinking of the role of Police in the modern world i.e. if police are to act as prosecuting officers.
The MPA proposes to remove the prosecution of offences from the responsibility of the Police, or at least, that such prosecution is performed by a specialised unit within the Police.
This amendment is needed first and foremost to bring the Malta Police Force on par with its European counterparts since it is only here that prosecutions are still carried out by members of the police and also such an amendment is needed to free a great number of police officers from their daily court duties and thus such officers would be free to carry out more investigative and police work. Also, this would expectedly improve the quality of cases brought before the Courts as such measure in itself constitutes a system of quality assurance.
Responsibility for Damages
When a member of the Force, in the discharge of his duties, causes damages to third parties, the latter have the right in accordance with the Civil Law of Malta to bring an action seeking for compensation for damages both against the Commissioner of Police/Government of Malta and also against the officer involved in his personal capacity.
This situation, especially in light of recent Court decisions, is a cause of demotivation for Police officers, when they are faced with situations where they are required to take certain actions in order to protect society or themselves. Often, officers found themselves in situations where their actions in discharging their legal duties would expose them to become susceptible to a Court action. Thus, they have to choose whether to honour their legal duties or protect their interests.
This holdback may be overcome by introducing protective measures for officers in this regard.
Thus, the MPA proposes that an action by private citizens in relation to the discharge of police duties shall always by directed against the Commissioner of Police in his official capacity. Then if, following an independent investigation, it transpires that the person has acted either maliciously or out of gross negligence, then the Commissioner of Police would reserve the right to seek reimbursement from the individual police officer. This would on one hand protect the police officer from becoming the subject of a Court action whilst trying to protect the societal interest and on the other hand, the third party would have a more efficient mean how to be reimbursed for the damages that he suffered as a result of Police activities.
The MPA, being a representative of more than 1400 police officers, has a real and actual collective interest in any change that might affect any of its members. It highly welcomes every initiative by the government aimed at bringing about changes to the Malta Police Force – transforming it from a colonial remnant Force to a modernised organisation of Police Service which embraces a bottom up management system, treats its employees with dignity and looks at its employees as the most valuable assets whilst at the same time responds to the current threats and societal needs, providing a customer oriented service.
The MPA urges the government to take account of the proposals contained in this paper while considering the amendments to the current legal framework and not to ignore the collective voice of the Police officers, for their own benefit and for the benefit of society at large.