Updated 7pm, adds IĠM reaction

Former premier Joseph Muscat breached the minister’s code of ethics when he defended members of his staff accused of detaining journalists after a late-night 2019 cabinet meeting, according to the Commissioner for Standards in Public Life. 

George Hyzler has ruled that having party loyalists acting as security personnel to stop journalists from leaving the Office of the Prime Minister raised doubts over the government's integrity.

The incident happened on November 29 of 2019, when journalists were stopped from leaving the office of the prime minister after a news conference with Muscat.

After the conference, which was called at 3am, Muscat had announced that Daphne Caruana Galizia murder suspect Yorgen Fenech would not be receiving a presidential pardon. 

Days later, Muscat announced he would resign.  

Last November three men accused of detaining the journalists were cleared in court for lack of sufficient evidence to prove that there had been an illegal arrest. 

Commissioner for Standards in Public Life George Hyzler himself believed that the incident warranted an investigation under the Standards in Public Life Act. He was also asked to look into the matter by the Institute of Maltese Journalists.

'Not acceptable conduct'

In his report, Hyzler says that during such charged political times, where the government was under intense scrutiny by members of the local and international press, somebody might have panicked and taken initiatives that were uncalled for. 

“In such a case, however, one would expect then-prime minister Joseph Muscat to acknowledge that his staff acted incorrectly, to inquire as to who was responsible, to hold them accountable for their actions, and to ensure that such actions would not reoccur. 

“Instead, he claimed that the journalists were asked to wait until ministers had left the room, and that 'steps were taken' to remedy the situation – claims that are contradicted by the evidence.”

Hyzler adds that “an attempt by a minister to justify the actions of his or her staff and to brush off the incident and to condone it through statements that are contradicted by the facts is not acceptable conduct.”

In the absence of a declaration censoring the actions of the perpetrators or an unequivocal apology for the incident at the time, the matter no longer hinges around the concept of vicarious liability, he said. 

Through such conduct, a minister assumes ownership of, and shoulders direct personal responsibility for, the incident, Hyzler concluded.

The Commissioner notes that it was the prime minister who had called the press conference at his office, where he enjoyed the service of the armed forces.
He could have therefore asked for heightened security if he felt the need to.

Assigning party loyalists as unofficial security personnel “is at best incorrect and abusive”. 

“This is a serious issue that calls into question the institutional integrity of Maltese government and the separation that should exist between state and party,” he said.

What is Muscat guilty of?

According to Hyzler, this incident represents a breach on the part of Muscat of articles 4.9 and 5.8 of the Code of Ethics for Ministers and Parliamentary Secretaries, which state that:

• Ministers shall keep their roles as Ministers and as Representatives separate, as well as their role as a member of a political party.
• Justice and respect – in their behaviour and in decisions which they take, Ministers shall show respect to the institutions and shall respect the laws of the country. They shall show a sense of balance and consideration by being sensitive in general to all sectors of society, and in particular to the rights and aspirations of the persons concerned, in order to act with a sense of justice.

Although Muscat no longer forms part of the government or parliament, the Standards Committee can still find him in breach of ethics, but it cannot impose sanctions on him under the Act.

This is Muscat's fourth ethics breach.

Early last year, the Commissioner had found Muscat to be in breach of ethics when he was selective in which media houses to invite for events.

Muscat was also found guilty of an ethical breach when he accepted expensive bottles of wine from murder suspect Yorgen Fenech, and in secretly giving former minister Konrad Mizzi an €80,000-a-year job as a consultant with the Malta Tourism Authority, weeks after Mizzi was forced out as minister. 

No explanation given to journalists

Hyzler flags the fact that “no one had the good sense” to approach the journalists to explain to them “in a calm manner" that they had to wait for a few minutes until the prime minister and the ministers exited, and that they would be let out.

All OPM officers who testified confirmed that they did not speak to the journalists, he says, adding that “to compound matters”, those physically blocking the exits were not security personnel.

“The fact that exit points were blocked by unofficial security personnel who did not answer any questions at all increased the significance of this failure and provoked unnecessary fear and anxiety in some of those present,” he concludes.

Why they do not want you to see it

On Tuesday, Speaker Anglu Farrugia said that the commissioner should not have continued investigating the incident, considering pending court proceedings.

The day before, government MPs sitting on the Standards Committee voted against the immediate publication of the report accusing Hyzler of going beyond the functions permitted to him by law, as the detention case was the subject of a police investigation and court proceedings.  

Opposition MPs Karol Aquilina and Therese Comodini Cachia pushed its publication.

Before kicking off his investigation, Hyzler did make enquiries to ensure that no proceedings were pending before any court or tribunal on the matter under investigation, as the Act precluded him from carrying out investigations in such circumstances.

He says that a judicial protest filed by the IGM and five journalists in November of 2019 and a prime minister’s counter-protest dated December 5 of that same year “not constitute proceedings as are referred to in the Act.”

He adds that after writing to the acting police commissioner in February of last year and being told a police investigation was underway, he suspended his own investigation, although, by that time it was complete.

Hyzler adds that while the Attorney General had lodged an appeal against last November’s sentence, and the appeal was still to be heard, his investigation did not focus on the three people charged in court or whether the events amounted to illegal arrest, detention or confinement. 

Pre-empting the ruling by the speaker on Tuesday, in which Farrugia refers to article 13(3) of the Act, Hyzler says this same article does not apply.

Institute of Maltese Journalists reacts

In a reaction, the Institute of Maltese journalists expressed regret that the Speaker of the House, who also chairs the House Committee for Standards in Public Life, had denied its request for a copy of the report.

The institute said it had to interpret such behaviour as "collusion" aimed to cover "undemocratic behaviour" with the media.

In spite of this, it said, the report had been leaked to a section of the media and the institute would have expected to at least be given a copy as a sign of courtesy, seeing that it had been the body which moved the complaint on the incidents and subsequently met Hyzler, also sending him a dossier with information about the incident.

The institute paid tribute to all the journalists who had been "victims of this abuse" in breach of human rights and insisted that the report, as recommended by the Standards Commissioner, should be sent to Muscat and also to itself, since it had filed the complaint.