The Courts and the Ombudsman: Complementary not competitive

The Courts and the Ombudsman: Complementary not competitive

Published February 18, 2026

 by the Parliamentary Ombudsman Judge Joseph Zammit McKeon

Published on newsbook.com.mt

Introduction

In societies where the rule of law prevails, the measure of accountable behaviour is not a single-lane road, especially in the case of institutions with constitutional safeguards but with distinct authority. The Courts and the Ombudsman are two of these institutions.

Despite what some non-believers may think, the Courts are a pillar of democratic well-being.  They are there to deliver blind justice according to law.  They do this not by making law, but by interpreting the law on the basis of facts that have been proven.  They decide disputes by imparting executive and binding remedies.

Alongside the Courts stands a guardian of fairness in matters of public administration: the Ombudsman. 

Misconception

It is wrong even to think that the Ombudsman competes with the Courts, encroaches upon judicial territory, or offers a parallel system of justice. This misconception represents not understanding what both institutions are there for. The Ombudsman complements the Courts, making them stronger and contributes towards a broader culture of accountability.

Purpose

The Ombudsman as an institution traces its origins to Sweden when in 1809 the Parliamentary Ombudsman was established to oversee the legality and propriety of government administration. The model spread across all continents, adapted to diverse legal systems and constitutional traditions. Whatever the democratic structure of the State, the Ombudsman is independent from the other organs of the State, is accessible free of charge to all persons, and has a mandate to investigate complaints on public maladministration.

Distinct

The Ombudsman is distinct from the Courts. 

The Courts are judicial bodies vested with authority to interpret and apply the law. They decide on rights and obligations, through adversarial proceedings. The procedures are formal and governed by rules of evidence. When a law is found to violate the human rights and fundamental freedoms of the person, the Courts have the authority to declare such violation and grant remedies, including pecuniary and non-pecuniary damages.  Final judgements of the Courts are binding and enforceable. Access to the Courts involves legal representation, costs, and adherence to procedural requirements.

The Ombudsman does not exercise judicial authority.  When investigations are concluded and recommendations are made, these can be substantial in nature and can include  changes in legislation, especially where acts of administration of Government under investigation, although legal, result from legislation that is unfair or unjust. Morally strong as they may be, the recommendations are not binding in character.  Moral strength remains the benchmark especially were investigations manifest injustice, unnecessary delays, improper conduct, improper discriminatory treatment, abuse of discretion or clear violations of law, including EU legal obligations.  The Ombudsman speaks clearly and unequivocally, strongly and in clear terms.

The attention of the Ombudsman is to fairness and good administration: whether an act or practice, even if strictly lawful, was unreasonable, not proportionate, not transparent, or disrespectful.  The public service and/or the public administration may act within the letter of the law yet still treat a person unjustly. The Ombudsman provides a forum to address such grievances without requiring a full-scale legal challenge.

Accessibility

Simply putting the feeling mildly, persons are unfortunately diffident, certainly uneasy and at times fearful when they approach the Courts, whatever their status in life, but especially the vulnerable of all sorts.  Accessibility could be a real-life problem for the desperate, especially where costs are concerned.

The fact that an Ombudsman process is free of charge and designed to be user-friendly, in the sense that complaints for investigation submitted in writing or online do not require legal assistance. This measure of accessibility does not diminish the importance of the Courts but serves to widen the spectrum of accountability.  Thereby, as far as public services are concerned, justice is not confined to persons who have financial means.

Remedies

The Courts provide legally binding outcomes within the strict framework of the dispute between the parties.  The Ombudsman does not have limitations of that sort or measure.

The recommendations of the Ombudsman often carry significant persuasive force to the extent that it is only in the minority of complaints where a complainant is found to be in the right, that public authorities show reluctance, or politely or, at times not so much, refuse to implement the recommendations. 

However, that should not be a consolation at all. Public officials must come to terms with reality in the sense that at stake it is not the reputation and standing of the Ombudsman, whoever is the occupier of the post from time to time, but their reputation, especially when their behaviour is negatively highlighted by an independent oversight body as the Ombudsman.

Persuasion

The absence of executive authority of the Ombudsman is not a weakness. On the contrary, it is the ethos of the institution. Not only does the Ombudsman seek to address complaints but also improve the public administration.  Reasoned persuasion is the leitmotif.  Public bodies may be more willing to implement reforms when the process is investigative rather than adversarial.  The Ombudsman is instrumental to move forward systemic improvement.  The Courts are constrained by the issues that are the subject of litigation. The proactive dimension of the Ombudsman complements the reactive role of the Courts.  The Ombudsman can resolve matters involving the public administration that would otherwise burden the courts.

Respect

The Ombudsman will not investigate a complaint if the same matter is brought before the Courts.  There is therefore no overlap between institutions dealing with the same matter.  This respect for judicial authority confirms the separation of functions and avoids conflicting outcomes.

Independence

This is a shared value. Judicial independence is the constitutional baseline.  The Ombudsman is also constitutionally independent.  There is no issue of competition but a common commitment to impartial treatment.  This contributes towards public trust.  A person may look for a practical remedy rather than a legal ruling. The Ombudsman can provide such an avenue for redress.  Another person may require a formal judgement regarding his rights.  In that case the Courts would be the appropriate forum. However, options sustain governance.

Visibility

When the Ombudsman publishes a critical report on maladministration in public bodies, the matter may attract the attention of the media and public opinion.  Court judgements do have a similar effect.  Public attention is an essential feature of transparent governance. Both institutions contribute towards informed and healthy public debate.

The emphasis by the Ombudsman on informality and flexibility can also serve as a bridge between the public and the State.  By listening carefully to individual experiences, by conducting thorough investigations, and by articulating findings in a manner that can be better followed, the Ombudsman improves administrative oversight. Despite the great work they do, the Courts, due to the complexity of legal principles that have to be analysed and decided, may not always be in a position to engage in a less formal narrative.  This is certainly not a limitation but a reflection of different institutional purposes.  Where a matter raises complex issues of legal interpretation or constitutional rights, the Courts remain the ultimate decision makers.  The strength of the Ombudsman lies in the promotion of good governance, ethical administration, and responsive public services.

The relationship between the Courts and the Ombudsman remains close.  Ombudsman reports may be brought as part of the evidence in lawsuits.  Ombudsman offices take  guidance from judicial pronouncements when assessing fairness.  From this complementary approach the public stands to benefit raising the standards of public action.

Conclusion

A healthy democracy requires formal justice and administrative fairness. It requires institutions that are capable of correcting legal wrongs and institutions capable of improving administrative culture.  The legitimacy of the Ombudsman rests on service to the public and loyalty to the principles of independence, impartiality and fairness.