Editorial

It has been a practice for the Armed Forces of Malta to set up roadblocks and carry out searches on persons and their vehicles. Lately, a controversy erupted on whether such action is legal.

Article 4(3) of the Armed Forces of Malta Act provides that the President of Malta may, by means of an order - which has the force of law - empower any member of the AFM to exercise all or any one or more of the functions, powers and duties vested in a member of the Malta Police Force. This means that the President may assign all police functions to the military. The Assignment of Powers to Armed Forces of Malta Order makes such provision.

The Criminal Code empowers the police to organise road checks where there are reasonable grounds inter alia for believing that a check on vehicles may lead to the arrest of a person who has committed or is about to commit any crime liable to imprisonment or who has anything in his/her possession prohibited or restricted by law.

Reasonable suspicion cannot be based on generalisations or stereotypical images of certain groups or categories of people as more likely to be involved in criminal activity. There must be an objective basis for that suspicion based on facts, information and/or intelligence. Moreover, when a vehicle is stopped it may be searched.

The difficulties such provisions pose are multiple.

The AFM Act allows the army to carry out practically all police duties and not only those which police officers cannot, for some reason, carry out in enforcing law and order. When soldiers carry out police duties they are not identifiable as police officers would be, because they do not carry a distinctive number on their uniforms. In such circumstances, one therefore cannot be faulted for wondering whether police duties should be carried out by the military, especially as a routine.

In addition, the Criminal Code does not define what constitutes a "reasonable suspicion". There is no published code of practice for use by police officers and AFM personnel regulating in detail what constitutes a "reasonable suspicion" and how road checks should be held. Such a code does exist in the UK and is available for consultation not only to members of the Malta police and the AFM but also to the judiciary and members of the public. One has also to distinguish situations between carrying out a car search and a search of a person, especially an intimate body search, particularly in the light of one's right to privacy.

Once cases have arisen, including in The Times, shedding doubt on whether the procedures used might not be in full respect of the law - and this without entering into the human rights implications - perhaps the government may wish to appoint a board of inquiry under the Inquiries Act to investigate such practices with the aim of making recommendations as to limiting police powers exercised by the military to those instances where the police are not equipped to carry out such functions, to recommend the drawing up and publication of a code of practice to be followed in road checks and to define with better precision, if need be by subsidiary legislation or in the said code, what amounts to a "reasonable suspicion".

Through such measures the citizen will put his mind at rest that police powers are exercised in full conformity to the rule of law and respect for human rights.