‘A culture change that needs to happen’ | Carissa Munro

Last Tuesday, the OECD issued its latest report on the subject of ‘ethics rules for public officials and appointees in Malta’: its fourth such report since 2018, when the Standards Commission was first set up. At a glance, it appears that the OECD’s original recommendations have yet to be implemented, four years later. Meanwhile, there has been no replacement of George Hyzler as Standards Commissioner: despite the face that his term expired earlier this year. How does the OECD interpret these apparent delays? Are you concernedthat the Maltese government may be deliberately dragging its feet on this issue?

First of all, I wouldn’t say that there’s been a ‘delay’, as such. It is more a case that the project is still ongoing; and to be upfront, there is still another report to come. We have a fifth report in the pipeline: this time about conflicts of interest, and the assets-declaration system.

So I can appreciate that the Maltese government would have an interest in waiting until all of those reports come out, in order to have a full picture of what the OECD is recommending, to adjust the ethics and intergrity system in Malta.

From our end, then, I wouldn’t say that we’re concerned, yet, that there hasn’t been any progress. I think our focus, and our message to the government, is that we are ready to support with the implementation in any way we can. We’re ready to answer questions; we’re ready to help work through the different recommendations that we’ve made; and we still have almost a full year of the project left, to answer those questions, and provide the necessary support.

Right now, however, we are not worried.

What about the ‘progress’ (if any) that has been made to date? For example: since the Standards Commission was set up in 2018, it has handled countless complaints about unethical behaviour by MPs. But George Hyzler himself admitted that: “Once I decide that there has been wrongdoing… it is up to Parliament  to decide whether or not to impose any disciplinary actions.” This has earned the Commission a reputation for ‘toothlessness’. Isn’t there some truth to that criticism? 

Well, the challenge involved in setting up an institution that is responsible for looking at integrity and ethics violations, committed by elected officials, is that there is a balance of power that you have to be very careful not to cross. 

I think the way that the system has been set up in Malta – and we’ve seen this elsewhere – aims to respect that balance of power; it aims to ensure that citizens are the ones who ultimately hold their elected officials accountable.

Now: whether it’s ‘toothless or not’, I think there are some challenges with the current system in Malta; and this is what we looked at extensively in our report, specifically with regard to Parliament’s Standards Committee. To us, it is very clear that the current set-up is not working well: even though it was designed in such a way, to deal with the issue of polarisation; and we can appreciate the thought that went into the design.

But one of our recommendations was to add lay-members to the Committee – and to potentially explore a different chair, who would be more independent – so that you can get over some of these deadlocks we are seeing.

The current chair of the Standards Committee happens to be Anglu Farrugia: a former Labour minister, who also doubles up as Speaker of the House of Representatives. Does your concern with his independence (or otherwise) arise just from his political background? Or is it specifically directed at how he has so far carried out his duties, in that position?

There are obviously concerns, that we noted in the report, considering when the chair did not use his casting vote in a case involving former minister Carmelo Abela. This is, I think, the role of the chair, in such circumstances. So, to explore other ways in which that function could be more effective, we proposed that the person to occupy that role should ideally come from the judiciary: or a similar position of impartiality.

But to come back to your question about sanctions: this is something I would agree with the Commissioner on. The role of the Commissioner is not to issue sanctions. I think one way to increase transparency in the system, would be to empower the Commissioner to recommend sanctions...

But isn’t that already the case?

Yes, but there also need to be more options for sanctions available to the Commissiob. I think the current options are quite limited. It’s another area we looked at in the report: how to strengthen the types of sanctions that could be recommended. 

But again, I would want to respect that balance of power, to ensure that it’s not an independent body, sanctioning those who are meant to be independent, and upholding the executive. It’s a very tricky balance to achieve...

It appears to be trickier in Malta than elsewhere, though. In presenting the report, you yourself said that “the small size of Malta, and the fact that many MP’s are part time workers, makes this a unique problem”. And when I interviewed him in 2020, Hyzler admitted to being ‘reluctant’ to even recommend sanctions, because they would invariably be interpreted through the prism of his own political background. Was this a problem for the OECD, when it came to drawing up the report?

I think it’s interesting that – as you rightly say – it’s ‘trickier in Malta’. When we look at good practice in other countries, we don’t see a similar set-up: whereby the people occupying these positions, come from political backgrounds.

In Canada, for instance, it’s someone who has an independent background: usually from the judiciary, or similar areas. And in the UK – while I don’t know, offhand, whether this is stipulated in the law or not – the role is traditionally occupied by someone who is not a former politician. I think that does lend a certain credibility to the role.

Having said this: I also feel that the current Commissioner has done an excellent job, at the end of the day, in trying to bridge that challenge. And I also see that there is some merit, in having someone with a political background in that role: in the sense that they would be able to understand, and appreciate, the sort of challenges that political leaders may face.

I don’t think, however, that it is necessary to have such a background, in order to do an effective job.  In fact, I doubt it; I think you can have someone with a more independent background, in that role.

But our small size may be problematic for other reasons. Among the OECD’s recommendations are that: “MPs do not continue their private work unless in favour of national interest; do not act as lobbyists; do not enter into contractual employment with close family; do not have private interests in private corporations, etc.’  Given that all Maltese MPs are part-timers (and the pay is not exactly very high) – how realistic is it, to expect people to give up their livelihood, in order to enter politics?

First of all, when it came to Members of Parliament, we recognised that it is not possible – at this time, and within the present system – for them to give up their primary occupation. I believe that MPs in Malta are currently paid a stipend of around E20,000; so asking them to give up their primary employment doesn’t seem feasible, unless the entire system is reformed.

So what we were trying to do, with those recommendations, is acknowledge that Maltese MPs are going to have  secondary employment – that is a reality – but these are specific areas where you have to be very careful... because conflicts of interest will arise; so even if secondary employment is inevitable, in this context, it should not be used as a ‘carte blanche’ to allow such conflicts of interest to go unmanaged.

With regard to the specific recommendation about ‘entering into contractual employment with close family’, however: I can see, now, that the wording may need to be clarified, to avoid misinterpretation.

What we are actually referring to, there, is the employment of close family members, in an MP’s own office emphasised. It’s not about ‘being separately employed within a family company’... it’s more about ‘not appointing your own wife, or child, or close relative’, when hiring people within their own office.

As for the one about ‘not having interests in private corporations’: that would be specific to a case where – for example – you have someone regulating the construction industry, who also has shares in a contruction company. Those shars would need to be relinquished: because otherwise, the MP would personally benefit from the decisions that he or she makes, which affect that industry... especially if the company were to be contracted by government.

Again, these are the key risk-areas that can come up. We recognise that MPs need to have secondary employment; but we need to make sure that there is awareness of the conflicts of interest that can arise; and that such conflicts are managed, when they do arise.

Because at the end of the day, this will improve public confidence in the system; and it will also prevent the risk of abuse.

Meanwhile, the OECD report places a lot on emphasis on the appointment of ‘persons of trust’: a designation which appears to have no actual legal basis, in Malta’s public procurement legislation. This time, however, the situation appears to be very far from ‘unique to Malta’: in fact, there are similar systems in place almost everywhere you look in Europe. Why, then, has there been so much focus on ‘persons in trust’ within Malta’s system? Is it more of a problem here, than elsewhere?

The reason we looked at this so much, in Malta, is that the number of persons of trust – as we understand it – is quite large. And there is the risk that it is being used to circumvent the merit-based appointment process.

Now: again, we understand that any minister, or parliamentary secretary, will naturally want to appoint people it can trust, to positions such as an ‘advisor’, or any comparable role. We recognise that that is a reality: you will always want to surround yourself with people you can rely on; who are close to you, and in whom you have confidence.

But to use it more broadly – for instance, as a ‘work-around’, to avoid transparency in public appointments – that’s when it becomes a problem. But I don’t think it’s a problem that is ‘specific to Malta’. If we were looking at another country, which used the same practice... we would be saying the same thing: i.e., that this is a big concern; that the country needs to adopt a more merit-based system; and so on. So if we’re making more noise about it, in malta... it is simply because Malta is the country we are working with, right now.

Having said this: I can’t say that it has come up as a major issue, for any of the other European countries we have looked at. But that may also be because we usually look at the public sector – the civil service itself – and not at the more political side of things. This, perhaps, is what makes Malta more of a ‘unique’ situation... at least, from our focus.

But as we have said on many occasions before, throughout this project: we do recognise that a lot of progress has been made, in Malta. And we also recognise that it is a difficult situation: there is a culture change that needs to happen, to adjust to these different ways of looking at ethics and integrity; and there have also been protests by citizens, demanding more accountability from their government.

We see this as something that will be beneficial to everyone: even to MPs, ministers and parliamentary secretaries.. who might see all this as a ‘straitjacket’; but really, it is to help them know that they can carry out their job effectively, and efficiently; so that - when there is scrutiny – they can say, “Hey, we’ve abided by the rules; we’ve done what we’re supposed to do...”; and that, I think, can help address some of these ongoing challenges.