Hyzler tells Speaker ruling on OPM ethics breach is ultra vires

Standards Commissioner tells Anglu Farrugia he has made erroneous interpretation of Standards rules for refusing to publish ethics breach report on Castille lock-in of December 2019

Journalists were briefly detained inside the conference at Castille in November 2019
Journalists were briefly detained inside the conference at Castille in November 2019

The Commissioner for Standards in Public Life, George Hyzler has told Speaker Anglu Farrugia his ruling on an ethics breach report concerning an unprecedented lock-in of journalists at the Office of the Prime Minister, has gone beyond parliamentary rules

Hyzler told Farrugia in a letter that his ruling on the ethics report was ultra vires and based on erroneous premises. As a result of his ruling, no action can be taken in connection with the report’s findings, with Hyzler warning that such rulings would mean a repetition in future.

Farrugia’s ruling came on a request by government members on the House standards committee.

“I would have greatly appreciated an opportunity to discuss the request with you before you issued your ruling... I would have expressed my profound concern that the request was an invitation to you to act in a manner that exceeds your legal powers, and this on the basis of an incorrect premise.”

Hyzler told Farrugia in no uncertain terms that his interpretation of the Standards in Public Life Act could undermine the aim of raising ethical standards.

“Your ruling seeks to constrain my remit as Commissioner for Standards in Public Life, which emerges not from the Standing Orders but from the Standards in Public Life Act. It is not within your power as Speaker, or as chairman of the Standards Committee, to interpret a law. It is the law itself which may establish a mechanism for its interpretation, failing which this becomes a matter for the courts,” Hyzler said.

The law gives the House committee the power to scrutinise the work of the Commissioner, but it does not extend to the interpretation of the law, Hyzler said.

While the House committee has the power to accept or reject a standards investigation report presented, the rejection must be legal and after a discussion of the report by the committee.

“It is my firm view that, for transparency’s sake, such a discussion should take place in public, and it should be preceded by the publication of the relevant report. Article 27(6) of the Act lends support to this view in that it obliges the Committee to give reasons if it decides to reject my report. Such reasons should be stated in public, which in turn presupposes that the report itself has been made public,” Hyzler said.

He also told Farrugia that as committee chairperson with a casting vote, he did not have the authority to take decisions in the form of “rulings” binding on the Commissioner. “The power to interpret the Act in so far as the Commissioner’s functions are concerned vests in the Commissioner and, ultimately, in the ordinary courts in the event that anyone should wish to challenge the Commissioner’s interpretation of the law.”

Hyzler even said that the law states that the Commissioner is not subject to the direction or control of any other person or authority. “Your ruling is, in my view, in direct conflict with this provision. For these reasons it is my firm view that you have been led into issuing a ruling that you do not have the power to issue, hence it is ultra vires. This is particularly ironic considering that the ruling was issued in response to a request claiming that I myself was acting ultra vires.”

In his ruling, Farrugia concluded that Hyzler should not have investigated the  detention of journalists at the Auberge de Castille with no explanation and by persons acting in no official capacity) since “there is no doubt that the matter regarding the facts encompasses proceedings that are still pending before the Court.”

But Hzlyer said in his report that his investigation and the criminal proceedings were two separate and distinct matters. “My investigation concerned the conduct of former Prime Minister Joseph Muscat in relation to the treatment of members of the media, specifically whether he was in breach of the codes of ethics with regards to the detention of journalists in his office. On the other hand the criminal proceedings concerned the conduct of three individuals who allegedly physically detained the journalists without lawful authority.”

Hyzler said there was no evidence linking the three persons charged in court with Muscat, whose conduct was the subject of the investigation. “You appear to argue that if two separate matters share some facts in common, they should be treated as a single matter,” he said, saying that linking the ethics breach and the criminal proceedings for the same events was “confusing issues”, despite having the same witnesses.