We need to take a good look at ourselves | George Hyzler

Over the past two years, a lot of criticism has been levelled at this Commission because of certain ‘limitations’ to its actual remit, for instance, that it cannot investigate cases preceding 2018 – and also about the lack of any punitive measures accompanying its decisions. Are people justified, then, in feeling that the Commission is actually ‘toothless’?

It’s ultimately a question of whether you see the glass as ‘half-full, or half-empty’.

Those who complain that this office does not have the power to go back in time, might – if they had a different attitude towards life – look at the same situation and say: ‘OK, so before we had a glass that was empty… and now, it is half-full’.

Because before this office was set up, there was no way to hold anyone to account at all. There was a code of ethics, yes; but no one to actually do anything about it. Now, however, there is an institution that can look into a complaint, and take action…

Perhaps, but what’s the point of determining that there was an ethical breach… if nothing actually happens as a result?

I wouldn’t go as far as to say ‘nothing happens’. Here we are talking mainly about ethics: and in the field of ethics, ‘naming and shaming’ is, in itself, already a remedy.

Some people might not agree with that; but the fact we now have an institution, that is supported by both sides of the House, is already much more than we’ve ever had before.

I don’t want to go into specific cases; but let me take, as an example, the most controversial decision I have taken so far. Former Prime Minister Joseph Muscat’s visit to Dubai.

In that case, I decided that the information that had been given to me by the prime minister, at the time, did not amount to a breach of the Code of Ethics; and because it was explained to me, in detail, what the purpose of his Dubai visit was… I took it upon myself to decide that it was of a private nature; and therefore, the information did not need to be shared publicly.

Obviously, this attracted a lot of criticism. And I can understand that; because an office that was set up for the purpose of transparency, was itself perceived to be ‘hiding information’…

In that case, however, it wasn’t just the purpose of the Dubai visit that was questioned: but also, who paid for it…

Yes: it was the whole package. But the question still remained: was it, or was it not, in breach of the Code of Ethics? If the information that was given to me – and believed by me; because there was no evidence to the contrary – did not amount to a breach, then the second point becomes: should I share the information?

In this case, I took it upon myself not to share that information; and it was extremely controversial. But the point is that – at any time before this office was set up – what would have happened is simply that a journalist would have thrust a microphone into the prime minister’s face, as he stepped out of Castille, and asked: ‘Why did you go to Dubai, and who paid for the trip?”.

The prime minister would probably have replied: ‘None of your business’… and that’s it. The matter would have stopped there.

Now, however, there is an institution that can actually question him on the matter; in a way that – unlike before – he has to answer…

At the same time, you are also proposing changes to the Code of Ethics itself. Should these changes extend to introducing punitive measures for politicians who have been found to have acted unethically?

First of all: the law already provides for punitive measures. But these are imposed by Parliament, not by my office. Once I decide that there has been wrongdoing… my decision goes to Parliament, through the Standards Committee; and it is up to them to decide whether or not to impose any disciplinary actions.

So far, I have not recommended any ‘punishments’ myself: firstly, because it’s not my own decision to make. But also because… let me put it this way: I am afraid that, if I do recommend punitive measures, it would take all the public attention away from the decision itself.

In the case of Joseph Muscat having accepted a gift of Petrus wine, for instance. Imagine if, in that case, I ruled that: ‘Joseph Muscat should issue a public apology’. You’d get half the country saying: ‘What, after all that fuss, the only outcome is an apology? What’s the big deal?’; but the other half would say: ‘Only a public apology? He should be put in prison for that…’

I don’t want to fuel political controversy, over an issue which is not my decision in the first place. If it was my decision – as in, if the law placed the onus of deciding punishments on me, instead of the Standards Commission – I’d do it.

But as things stand: the decision of whether ‘it’s right or wrong’ is mine to take; and I’ll stand by it. But then, the actual choice of ‘torture tool’ is not mine. So why take it… when it will only detract from the decision itself?

However, the distinction between what is ‘illegal’, and ‘ethically wrong’, is in itself problematic, given that the people you investigate are also legislators.  For instance, you have often complained about the practice of appointing ‘persons of trust’. But if the government refuses to legislate on the matter: where do your complaints leave us, if not where we started?

I have expressed myself many times on the unconstitutionality of this practice; but again, I can’t force government not to do it. The most I can say is that, ‘this office thinks that this practice is wrong’.

Why do I think it is wrong? Let me put it this way: whereas one can understand that, in secretariats, you do need a small number of people, in key positions, that you can trust… the reality is that the practice has become so widespread, that it is now totally out of control.

Secondly, it has now extended well beyond secretariats… even to positions that are not, in themselves, really all that ‘sensitive’ (for want of a better word).

All along, however, the problem is that – at its core – this practice has no legal basis. ‘Persons of trust’ are not mentioned anywhere in the law. The only way the Constitution provides for employment with the government, is through the Public Service Commission.

But my point is that I can understand the need to make ‘exceptions’. I come from a political background, myself; I’m a practical person, and I do not live in the clouds. So I absolutely agree that there should be provisions, at law, to cover these exceptions…. but only as long as it remains an ‘exceptional’ practice; and only as long as it is controlled: in the sense that a mechanism is introduced, through the Constitution – and not through simple legislation, as there is an attempt to do now – to recognise these positions, and give them the stamp of legality.

And that, in turn, is something only Parliament can do. The most I can contribute is to make recommendations; but I can’t actually change the law myself…

Meanwhile, you said that you ‘come from a political background’. Are you concerned that your past career as a Nationalist Party MP might ‘colour’ public reactions to your decisions?

My biggest problem, in fact, is that people read media interpretations of my reports… without reading the reports themselves. And very often, the media has its own slant. Secondly, because of my political background, people often try to gauge what the motive behind the decision was; rather than looking at the content of that decision.

So instead of looking at whether the decision is ‘right’ or ‘wrong’ – or whether it is ‘according to the rules’ or not – people conclude that I came to that decision, because ‘I’m Nationalist’; or, conversely, ‘because I want to suck up to government’. It’s always a case of ‘either/or’: people who disagree with my decisions – and every decision will always go against the feelings of the political die-hards, on one side or the other – will interpret the decision, not for what it is…. but rather, for what they perceive to be my motives…

All the same, however: I don’t consider it as a handicap. Being a former politician is also an advantage: it means I have a certain awareness of how politicians think; and how they tend to operate. And this, by the way, also extends to – how can I put it? – knowledge of how politicians may try and ‘get out of’ certain situations…

Secondly, I think it is important that the person occupying the post of Standards Commissioner should, in fact, come from the side of the Opposition: even on the basis that government cannot be expected to scrutinize itself.

In the UK’s House of Commons, for instance, the chairman of the [equivalent] committee always comes from the Opposition…

Another question mark surrounding your role is that your remit is limited only to cases that occurred after two years ago. Don’t you feel that this (somewhat arbitrary) cut-off date was included specifically to prevent you from investigating certain specific ‘ethical breaches’ predating October 2018?

We talk about 30 October 2018 as a ‘cut-off date’; but in fact, it’s not. It’s a moving target: always one year from when the act was committed. That’s the furthest back I can go. Today, for instance, the cut-off date is the 12 November of last year. I can’t investigate anything that happened before that date…

In practice, however, it also translates into an inability to actually investigate wrongdoing at all. This was, in fact, the reason you gave for not investigating the recent revelations about Jason Azzopardi’s trip to Tel Aviv in 2017…

To be specific: what I said in the Jason Azzopardi case was that: ‘You [Azzopardi] know I can’t investigate this case. I will not let this office be used for political stunts’…

… and yet, in your annual report last May, the vast majority of cases you investigated turned out to be complaints by politicians, about other politicians. So isn’t it true that your office is, in effect, ‘being used for political stunts’?

It is, up to a point, inevitable. I do understand that the person who makes the complaint, can get some kind of political mileage out of the fact that he’s made a complaint.

But I don’t see that as an issue when it comes to the investigation itself. Regardless of any political motivation behind any individual complaint… the question should ultimately remain: was the behaviour ethically appropriate, or not?

And it’s not always clear-cut. Ethics is, at the end of the day, a subjective concept. And it changes over time: what was considered ’acceptable’ yesterday, might not be acceptable today, and so on.

So I am, in a sense, the ‘interface’ between the public’s expectations, and the rules. The rules themselves cannot be expected cover all situations… so my job is take any given situation, fit it into the rules; and also, take into account what the public expects…

On that note, your position allows you to look more deeply into Malta’s political and institutional set-up than others. On the basis of what you have seen so far, how ‘sick’ would you say Malta’s system really is?

I would like to limit myself only to ethical issues; not to corruption in the wider sense. In fact, I am obliged to refer any corruption cases that come my way, to the Commission Against Corruption, or – when the new law is eventually passed – to the Attorney General. So I think it would be very imprudent of me to comment further, at this stage.

What I can say, however, is that ethics reflects the society we live in. And there is a downward trend, everywhere, in everything that we do.

So in a way, it is good that government had the courage to appoint a Commissioner to put the brakes on: not just to aim for higher standards; but also, to stop the downslide.

I hope to be able to do that. Because we are facing a downslide… not just in politics; but in society in general.

Don’t get me wrong, I am not in any way ‘conservative’; I don’t believe in preserving old traditions, at all costs; but I do feel we do need to take a good look at ourselves, and how we conduct our public lives.

This is, in fact, what the Commission was set up for two years ago. But it’s a process; and we’re still at the early stages…