The Commissioner for Standards in Public Life has been quoted in the media as having affirmed that there is no breach of parliamentary ethics when a Member of Parliament (MP) who is neither a minister nor a parliamentary secretary lies. Nevertheless, he contended, such breach does exist in the case of a Minister or a Parliamentary Secretary.

His line of argumentation appears to be that whilst the Code of Ethics of Ministers provides for such unethical behaviour to be subject to censor by the written law, there is no such provision in the written law to that effect in the case of a Member of Parliament who is neither a minister nor a parliamentary secretary. Hence, arguing a contrario sensu, a parliamentarian who is neither a Minister nor a Parliamentary Secretary such as government back benchers and Opposition MPs will not be in breach of the written law if they lie in the House of Representatives.

The Applicable Written Law

The Standards in Public Life Act refers twice to honesty in relation to the discharge of ministerial duties. One of these references reads as follows: '5.7 Honesty - Ministers shall avoid entering into conflicts of interest between the public interest and their private interest and shall provide complete and correct information to Parliament, to the Cabinet and the public in general' No such requirement is written down in the Code of Ethics of Members of the House of Representatives, contained in the First Schedule to the Standards in Public Life Act.

The Commissioner for Standards in Public Life's Recommendation to amend the Law

In paragraph 3.7 of the Proposed New Code of Ethics for Members of the House of Representatives, the Commissioner for Standards in Public Life has recommended the inclusion of the following paragraph: '3.7 Honesty - members shall be truthful'. Whilst this is a valid proposal, the question arises whether its inclusion is more in the nature of adding a new duty to oblige all MPs to be honest in their dealings in the House or whether it is codifying an accepted unwritten constitutional practice followed by parliamentarians.

This author is of the view that since 1921 there has always existed a constitutional practice in Malta that all MPs - irrespective of whether they are Ministers, Parliamentary Secretaries, government backbenchers, or Opposition MPs have considered themselves - when exercising their official parliamentary duties - bound by the duty of honesty. This implies that whilst there is no harm in codifying this constitutional practice in the current code of ethics or in a revised code of ethics for parliamentarians, this does not - by itself - imply that parliamentarians, contrary to ministers, are entitled to lie.

Indeed, one of the maxims of Roman Law that continues to inhere in civilised legal traditions is that devised by the Roman jurist Ulpian in his Regulae - 'to live honestly, not to harm others, and to render to each his own'. The constitutional parliamentary practice to live honestly, in the case of Malta, does not derive from a written law as Ulpian's dictum that was enshrined in the Digest, the Digest being a Roman Law, but in an unwritten law that is based on Maltese customary constitutional practice.

Reflections on the Standards Commissioner Decision

Bearing the above in mind:

First, the Standards Commissioner has based his decision on the written law, thereby ignoring constitutional customary parliamentary practice.

Second, that lying is wrong need not necessarily be set out in a moral commandment like that which states: 'You shall not bear false witness against your neighbour' (Ex 20:16), or in the Standards in Public Life Act as with Ministers and Parliamentary Secretaries, or deduced through human reason. Through an interpretation of the Standards in Public Life Act, the duty imposed upon MPs not to lie and to be honest can be arrived at through necessary intendment, that is, that parliament - notwithstanding the lacuna in the written law - never had the express intention to allow parliamentarians to lie in the House.

The argument that because Ministers and Parliamentary Secretaries are expressly enjoined by the written law to be honest does not, a contrario sensu, imply that non-ministerial and non-parliamentary secretarial parliamentarians can lie with impunity. Nowhere is it written down in the law that such a lacuna or omission in the written law authorises such parliamentarians to lie. Instead, the omission in the law to prohibit lying by non-ministerial and non-parliamentary secretarial parliamentarians is neutral: through written law, Parliament has, so far, not yet adopted a position on the matter. Therefore, the matter remains unregulated by written law. Hence, one must look elsewhere for a solution to this quandary.

Third, the fact that the Standards in Public Life Act is silent on the matter of lying by certain parliamentarians does not automatically mean that these parliamentarians are free to lie to their hearts' content. As a matter of fact, Maltese parliamentary practice - the unwritten customary law of the House of Representatives - has always been in the sense that parliamentarians (whether ministers, parliamentary secretaries, or other MPs) should not lie to the House. Of course, if ministers and parliamentary secretaries lie this is considered politically more serious than if another member of the House were to lie as it can bring about certain grave consequences to the government of the day. But, from the point of view of morality or of good ethical conduct, a lie is a lie, whether uttered by a minister, parliamentary secretary, or other parliamentarian.

Hence, the issue here is that there has been an uninterrupted and consistent constitutional practice - a custom or usage of the House of Representatives - that has evolved since 1921 to date, and that has not been ever challenged or changed since then - that all parliamentarians should not lie to the House. This conclusion of a purely legal nature, of course, is arrived at without considering other pertinent considerations, whether based on morality, religion, philosophy, ethics, values, virtues, or other similar considerations.

Kevin Aquilina is Professor of Law, Faculty of Laws, University of Malta