Strengthening our standards
When I was appointed Commissioner for Standards in Public Life in March 2023, I found myself stepping into an office which had been in place for less than five years. But it had already helped strengthen our collective understanding of expected ethical behaviour in public life.
I also appreciate more fully the role which the Standards in Public Life Act has played in introducing an element of oversight, as well as the act’s flaws. These are some key issues that have become apparent to me over the past year.
PreScriPtion
The commissioner cannot investigate an act which occurred before the law was brought into force (October 30, 2018). Nor can the commissioner consider a complaint made more than a year after an act occurred, or more than 30 working days after the complainant became aware of the act.
Prescription is not a ‘technicality’; it is the law. The commissioner would be acting ultra vires were he or she to take cognisance of such complaints. The removal of prescription for politicians under the Criminal Code does not apply here but applies to alleged criminal acts only.
oecD recommenDationS
In October 2023, my office, together with the Organisation for Economic Cooperation and Development (OECD), finalised a project on ‘Improving the Integrity and Transparency Framework in Malta’.
The recommendations published by the OECD in its report merit serious consideration to improve the act and overall integrity system in Malta, in line with international best practices.
One such recommendation concerns the prescriptive period contemplated in the act, which is, in my opinion, far too short.
Sometimes, it takes months for facts or allegations to come to light. By the time my office or the complainant is made aware of this, the year would already have elapsed. I wholeheartedly support the OECD recommendation to increase the prescriptive periods under the act.
The OECD also issued recommendations on the system of asset declarations, which MPs and ministers file every year.
Currently, ministers complete annual declarations of their income and assets, which are then tabled in the House of Representatives, as a result of which they become publicly accessible through the House’s website.
All MPs declare their assets (but not income) using a separate form. Declarations by MPs are not published but are open to inspection by the public.
This report proposes that the requirement to declare one’s assets should also apply to certain persons of trust and that declarations should include more information than the minimal information
It also proposes a formalised system for the declaration of conflicts of interest (for instance, if a member of parliament has an interest in legislation before the House), which should be separate from the declaration of assets. currently
aDvertiSing guiDelineS
presented.
A matter of concern to me regards the advertising guidelines issued by my predecessor. On June 28, 2023, the Committee for Standards in Public Life concluded its consideration of a case that involved government advertisements. A casting vote by the speaker led the committee to vote against the report in that case. The speaker said he could not agree with the conclusions of the report because the guidelines on advertising cited therein had no legal standing. However, he also said he agreed with the content of the guidelines and he felt they should be given the force of law.
In light of this, I wrote to the committee on July 18, 2023. I warned the committee that it had made it difficult for effective action to be taken against breaches of ethics involving publicly-funded advertisements and I stated that this situation should be resolved with urgency.
I, therefore, recommended that the guidelines should be recast as formal rules and incorporated in the ministerial code of ethics to “give the guidelines a legal basis and eliminate any doubts about their validity”.
The committee began discussing this recommendation on August 3, 2023. During that meeting, the speaker expressed his agreement with the recommendation but the committee has yet to come to a decision and the matter remains pending.
Publication of DeciSionS
Currently, if the commissioner decides that a complaint does not warrant in-depth investigation, he cannot publish his decision to this effect. He can only send the decision to the complainant and the person about whom the complaint was made.
This practice was established in 2019 by agreement between the previous commissioner and Parliament’s Standards Committee. It was felt that the commissioner should not publicise an allegation if he did not intend to investigate it, so as to avoid causing harm to the person about whom the allegation had been made.
Often, however, an allegation is already in the public domain when it becomes the subject of a complaint to the commissioner, or else it is publicised by the complainant. The complainant or the person who is the subject of the complaint often also publicises the commissioner’s decision not to investigate the complaint.
Decisions should be made public in an official, rather than unofficial, manner. For this reason, I wrote to the speaker in his capacity as chairperson of the Standards Committee on June 15, 2023, proposing that the committee should empower the commissioner to publish decisions not to investigate complaints.
On December 5, 2023, I wrote again to point out that my request had been pending before the committee for more than five months and the matter had now become urgent. However, this matter is also still pending.
PreceDentS
Another matter I wish to emphasise is that the decisions taken by myself as commissioner and by my predecessor do not constitute precedent. Of course, past decisions may be taken into account in future decisions, especially if the circumstances are the same, but no decision by a commissioner binds his or her successors. I am not even bound by my own decisions because every case is decided on its own merits.
Judicial precedent does not exist in our legal system. There is absolutely no reason why it should exist in the area of ethics given that, as my British counterpart, Daniel Greenberg recently said, “there are things that would not have been grounds for disciplinary intervention 35 years ago that are today”.
“Decisions should be made public in an official, rather than unofficial, manner
Chief Justice Emeritus Joseph Azzopardi is the Commissioner for Standards in Public Life.