The Proposal: The Office of the Parliamentary Ombudsman as the National Human Rights Institution for Malta

The Proposal: The Office of the Parliamentary Ombudsman as the National Human Rights Institution for Malta

Published February 01, 2025

The Ombudsman presented the new Ombudsman Bill to Government for consideration. 

Introduction

Malta is one of the very few member states of the European Union and of the Council of Europe that has not yet established a National Human Rights Institution (NHRI) in accordance with the Paris Principles of the United Nations. 

The Office of the Ombudsman has consistently advocated in favour of its appointment as the NHRI for Malta, by extending its present remit to include a broader human rights mandate. The Ombudsman Act 1995 as it stands today empowers the Office to investigate complaints and make recommendations on acts or omissions of the public service and/or the public administration that result to be maladministration due to unjust, oppressive, or improperly discriminatory behaviour.

The strength of the Office of the Ombudsman, eventually to act also as a promotor and/or protector of human rights and fundamental freedoms, derives from its statutory and constitutional independence from Government and the other organs of the State, from the fact that its budget is not dependent on Government, and from the fact that although the budget has to be receive parliamentary approval as the Ombudsman is an officer of Parliament, the Office enjoys financial autonomy.

The Ombudsman and Human Rights

In many EU member states, the functions of NHRIs are part and parcel of the Office of the Ombudsman, as it has been factually proven that when one Office deals with greviances on matters of maladministration by the public service and the public administration and issues that affect human rights and fundamental freedoms, such matters can be better addressed and acted upon.  The Paris Principles that govern NHRIs allow for flexibility in structure in a way that each country can tailor its NHRI to fit its legal, social and political context.  Where Malta is concerned, several international bodies have acknowledged that, even in its present statutory role, the Office of the Ombudsman in Malta is an important player in the promotion of human rights.

Advocacy efforts

The first proposal

In 2013 the Office of the Ombudsman had proposed the setting up of an NHRI in Malta to monitor, promote and ensure the observance of fundamental human rights in the country.  The proposal was in the sense that the Office should act as a catalyst and focal point of other national institutions and of both public and private authorities.  The model was designed to offer a comprehensive overview of the protection afforded to persons against violations of their fundamental rights. 

The White Paper of 2015 on Human Rights and Equality 

In 2015, the Government of Malta published a White Paper titled “Towards the Establishment of the Human Rights and Equality Commission” (HREC). 

The Office of the Ombudsman acknowledged that there was a consensus on the need for such a commission. However, the Ombudsman emphasised that the setting up of the HREC had to complement existing institutions, including the Ombudsman, without diminishing their roles .

The Ombudsman raised concerns regarding the proposed Equality Bill, cautioning against oversimplified interpretations that could lead to jurisdictional conflicts between existing bodies. 

The Office recommended in depth consultation to ensure that the proposed commission would be integrated effectively into Malta’s legal framework.

Eventually two bills were presented before Parliament: The Equality Bill and the Human Rights and Equality Commission Bill.  A parliamentary debate on both bills followed. 

The dissolution of Parliament in 2022

On the 20 February 2022, Parliament was dissolved, and Malta went to a General Election.  This fact had the legal consequence that all bills that were pending before Parliament prior to the General Election, including the Equality Bill and the Human Rights and Equality Commission Bill, lapsed.

The current Parliament

Before the current Parliament, there are to date no bills relating to equality and human rights.

2023: A practical proposal

Following the appointment of Judge Emeritus Joseph Zammit McKeon as Parliamentary Ombudsman in 2023, the Office not only emphasised the need for Malta to have an NHRI but also put forward its credentials to act as the NHRI for Malta.  

That Malta needs an NHRI is out of the question as no independent public office in Malta (other than the Courts of Justice) has a mandate to monitor, promote and protect human rights and fundamental freedoms.  

The setting up of NHRIs within the framework of Ombuds institutions would be consistent to similar bodies in other European countries with the advantage, in addition to the primary consideration of legally ascertainable and factually proven independence, that such a setup would avoid the complexity and resource demands of establishing a separate institution.
In November 2023, the Office of the Ombudsman submitted a clear proposal to the Prime Minister with its credentials. The proposal outlined the benefits of using the existing institutional framework, thereby avoiding the need for a separate institution to serve as the NHRI for Malta.

The existing infrastructure, experienced staff, and established procedures of the Office already provide a solid foundation for a broader human rights mandate. This reachable approach would enable the rapid implementation of NHRI functions while reinforcing public trust through the Ombudsman’s already proven and respected role.

The Prime Minister referred the proposal for further discussion to the Parliamentary Secretary for Reforms and Equality.

A meeting with the Parliamentary Secretary for Reforms and Equality was held in February 2024, where the Ombudsman explained the rationale behind the proposal. 

Unfortunately, the meeting was completely inconclusive in the sense that the Parliamentary Secretary stated that the Government was still exploring the best way forward and had not adopted a definitive position. 

To date, no developments have been made public from the side of the Executive on this matter.

European Network of National Human Rights Institutions (ENNHRI) Associate Membership

In February 2024, the Office of the Ombudsman submitted a formal application for Associate Member Status of the European Network of National Human Rights Institutions (ENNHRI).

In the application, the Office stated that, given the lack of progress on establishing a standalone NHRI following the dissolution of Parliament in 2022, it had again proposed integrating NHRI functions within the already functionally present Ombudsman structure. 

The ENNHRI board officially accepted the application, and the Office of the Ombudsman became an Associate Member of ENNHRI.

Review of the present Ombudsman Act

Following its acceptance as an Associate Member of ENNHRI, the Office sought assistance from ENNHRI to review the Ombudsman Act to ensure full alignment with the Paris Principles of the United Nations.

Between April and May 2024, ENNHRI conducted a detailed review, identifying key areas for improvement, including:

• Expanding the mandate to include promoting and protecting human rights.
• Strengthening the selection and appointment process to ensure transparency and pluralism.
• Enhancing the Office’s independence and securing adequate resources.
• Engaging more actively with civil society.

Fresh and forward looking legislation

In response to these findings, the Ombudsman drafted a new fully-fledged Ombudsman Bill rather than resort to fragmented amendments to the present law.

In October 2024, the draft Bill was forwarded to ENNHRI for further review. In that same month, during the ENNHRI General Assembly, the Ombudsman participated in a parallel meeting with ENNHRI representatives to discuss the proposed Bill and explore potential enhancements.

ENNHRI commended the efforts of the Office to align with the Paris Principles of the United Nations and its resolve for an extended mandate as an NHRI. ENNHRI noted that significant amendments had been introduced to support this mandate, including:

• A broad human rights remit, covering the protection and promotion of human rights through awareness-raising, education, advising on national legislation, and reporting on the national human rights situation.
• A comprehensive definition of human rights, encompassing rights set out in international, regional, and domestic instruments, as well as those recognised by national and international courts.
• Strengthening the Ombudsman’s authority to follow up on recommendations made to national authorities.
• Reinforcing the Ombudsman’s independence by expressly stating that the Ombudsman shall not be subject to direction from any other person or authority.

ENNHRI provided additional technical advice, which the Ombudsman reviewed and adopted where appropriate. These measures are included in the proposed new Ombudsman Bill.

The Rule of Law Report of the European Commission 

The Rule of Law Report, published on 24 July 2024, highlights the lack of significant progress in establishing a National Human Rights Institution (NHRI) in Malta, as recommended in the Rule of Law Report of 2023.

Despite the Government's commitment, no tangible steps were undertaken to establish in Malta an NHRI that is aligned with the UN Paris Principles. 

The Resolution of the General Assembly of the United Nations

The UN General Assembly resolution of 17 December 2024 titled ‘The role of Ombudsman and mediator institutions in the promotion and protection of human rights, good governance and the rule of law’ acknowledged the critical role of Ombudsman institutions, particularly those that also serve as National Human Rights Institutions (NHRIs), in promoting and protecting human rights, good governance, and the rule of law. 

The UN resolution highlighted their ability to address power imbalances between individuals and public authorities, promote transparency and accountability, and foster respect for justice and equality. The resolution underscored the flexibility within the Paris Principles to allow Ombudsman institutions to assume NHRI functions, recognising their unique capacity to strengthen human rights frameworks, resolve grievances, and support Sustainable Development Goal 16 on effective, accountable, and inclusive institutions.

Presentation of the Bill to the Executive

On 19 November 2024, the Ombudsman presented the new Ombudsman Bill to the Prime Minister of Malta for consideration. 

The proposed legislation provides a comprehensive resource-efficient solution for establishing a National Human Rights Institution (NHRI) in Malta.

By expanding the existing mandate of the Office of the Ombudsman, the Bill ensures effective compliance with the UN Paris Principles and addresses the urgent need for a robust and independent NHRI. This initiative underscores a clear commitment to safeguarding and promoting fundamental human rights and freedoms in Malta.

The Office of the Ombudsman is rendering public the new Ombudsman Bill as proposed to the Prime Minister of Malta. The new Ombudsman Bill can be downloaded from here.