UPDATED/Prime Ministers should be above dirty tricks and abuse of systems

The prime minister said this morning that he has consulted with the Attorney-General who told him that the Income Tax Management Act allows him to “publish the names of politically exposed persons”. It does not.

The term ‘politically exposed persons’ does not exist in that law, which speaks only of members of parliament past and present.

And it is the Speaker of the House (parliament – a separate authority to the government) only who has the right under the law to request income tax returns (no other details, certainly not bank details) from the Commissioner of Revenue.

He can then give them directly to a newspaper editor when a specific, written request is made – but it is the editor, and not the Speaker, who is permitted to publish them.

The duty of newspapers now – we are supposed to be on the side of democracy and the public, remember – is to pursue the Attorney-General to see exactly what he said to the prime minister, rather than taking the prime minister’s word for it, and to quote directly from the Income Tax Management Act, which is readily available on line.

UPDATE/The prime minister has conflated the Income Tax Management Act with money-laundering legislation, which is where the term ‘politically exposed persons’ appears. He also mentioned this legislation, but there is a problem there too. The definition of ‘politically exposed persons’ is tightly restricted to prime ministers, heads of state, government ministers, members of parliament, senior civil servants, judges and magistrates, and their families. The data of all others cannot be released by the government.

A prime minister who abuses his authority is a truly dangerous thing, and we journalists are here to guard against that and not to make things easier for abusive prime ministers or to cooperate with them for the short-term goal of a story that weakens our proper goal of strengthening democracy. Now read on.

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Joseph Muscat’s press conference this morning on the subject of Swiss Leaks stank to high heavens of lies and abuse. Maybe it’s not so easy to join the dots when you’re standing on the outside and picking up bits of information here and there.

But when you’re following things every step of the way, you can see the abuse, dirty tricks and manipulation as they unfold. And you can also see what’s coming next.

France has given the Maltese government the names of Maltese people in the Swiss Leaks database. We are told that the information was received this morning, and that’s why the prime minister called the press conference now.

But I have had the impression for some days that the prime minister has a pretty good idea of whose names are in that data because of his ebullience, the way he has been speaking about how those people “should be scared” and how all action will be taken against them.

It’s not the ebullience of a prime minister who is relieved that none of his people are in there. It’s the ebullience of a political dirty tricks campaigner (or an ex-reporter cooperating with friendly newspapers) who has stumbled on to a couple of really good stories.

I will stake a bet that he has known the names for some time now and that he has been building up to a plan which has nothing at all to do with implementation of the tax laws.

Then yesterday The Malta Independent announced, in its story on Ninu Zammit and his hidden millions, that it is now working in official media partnership with the International Consortium of Investigative Journalists. This means that The Malta Independent has full and unrestricted access to the entire Swiss Leaks database, and it is able to access that information directly. The data to which it has access includes not just the names, but the full details including bankers’ notes – and this not just for Malta but every country involved.

Whatever plan Muscat was hatching was immediately scuppered by that bit of news from the newspaper which, as it happens, is the very one he sidelines and pushes aside even as his office quite obviously leaks stories to Malta Today and Times of Malta journalists with which they have a relationship (yesterday’s Giovanna Debono story being a case in point).

Muscat also said over the course of the weekend that he will be “exposing one story after another”. This is not the way a prime minister behaves. Prime ministers do not “expose stories” like journalists or party campaigners. They take action under the law, or political decisions.

If a prime minister knows of wrong-doing, he deals with it through the official channels, not keeps the details in an arsenal of campaign weapons to cause damage to his opponents or to distract the public from his own shortcomings when convenient for him.

This distinction between prime minister and self-preserving political campaigner is one Muscat does not recognize or respect, and that is frightening and worrying. It’s how dictators evolve, by trampling on democratic norms.

When the prime minister became aware that The Malta Independent has full access to all Swiss Leaks data – more information than the government itself does – his carefully orchestrated plan to manage the data for his personal advantage will have blown up. So Plan B clearly kicked into action.

European law (directives) prevents governments from using the data for purposes other than taxing. Governments cannot pass the information on to departments other than the Inland Revenue and they most certainly cannot make the names public.

The Commissioner for Revenue has himself repeated this several times to different newspapers over the last few days. The prime minister said the same during his press conference this morning.

But the prime minister is easy to read by those who monitor him closely because he always builds up to things and the crucial information is buried in the detail or presented at the end.

In this case, he built up to informing the press that even though European law does not allow him to gain access to the names himself, as prime minister, or publish them, he has spoken to the Attorney-General and the Attorney-General (that man who sat in the theatre box with Janice Bartolo and her boyfriend) has told him that he can publish the names of “politically exposed persons” in terms of the “Income Tax Management Act”.

I have read the Income Tax Management Act and there is absolutely nothing which allows the prime minister or his government to publish the names of persons, whether they are ‘politically exposed’ or not, in connection with tax matters.

There is only something quite entirely different, which I have written about before: the clause in the Income Tax Management Act which allows THE SPEAKER OF THE HOUSE (definitely not the government) to request INCOME TAX RETURNS (not other tax details and certainly not banking details) from THE COMMISSIONER FOR REVENUE and to give them DIRECTLY TO THE EDITOR OF A NEWSPAPER in response to a specific request from that editor. And this only for MEMBERS OF PARLIAMENT, PRESENT AND FORMER – not ‘politically exposed persons’. There is no mention of publication – publication is a matter for the press, not for the Speaker himself, still less for the government.

The government and the prime minister do not enter the equation at all, and they are most certainly NOT empowered to publish information themselves or give it to others, in the media or outside the media.

This is clear abuse.

My considered view is this: the prime minister announced this morning that he has consulted the Attorney General and will publish the names of ‘politically exposed persons’ as a cover for having given selected information already to specific journalists at either Times of Malta or Malta Today, or both – something which he is expressly barred from doing by the law and by the norms of decency.

When a prime minister cannot be trusted with people’s personal data and leaks or publishes it strategically according to party or personal convenience, we are on really dangerous ground.

How is this different to newspapers reporting the same information? It’s very different. Newspapers and prime ministers have different status under the law and in a democracy. Newspapers hunt down information and publish it to serve as a control on the authorities, in the interest of the public. Prime ministers who release information to preserve and protect themselves, or to manipulate and threaten others, are in another context altogether. They are undemocratic. And journalists, too, have to operate within the law and cannot release or publish tax and banking data about individuals unless they are politicians, hold public office or are involved or suspected of involvement in crime.

That’s exactly why the International Consortium of Investigative Journalists has not made the database public and is extremely rigorous about selecting those it will work with and to whom it will give access.

But most dangerous of all, in a democracy, is a situation where journalists and newspapers cooperate with a prime minister/government in pursuit of a common, miserable agenda.

We are living in terrible times. But because there is no violence in the streets, no physical danger, many cannot see the insidious deterioration of the democratic norms we thought we held dear.