The Office of the Ombudsman has all the credentials to become the National Human Rights Institution (“NHRI”) for Malta - Factsheet 4

The Office of the Ombudsman has all the credentials to become the National Human Rights Institution (“NHRI”) for Malta - Factsheet 4

Published December 17, 2024

Around the world NHRIs vary in authority and structure. Although countries have adopted different forms for the institution, the most popular in Europe are the ombuds-type and the commission-type.  The one most appropriate for Malta is the ombuds-type where a national ombudsman (in our case, the Parliamentary Ombudsman) not only investigates  complaints on administrative acts or omissions of the Government but also promotes and protects the human rights of persons by means of articulated investigations.

When we speak of human rights, we are referring to the fundamental rights and freedoms of the person as set out in international, regional and domestic instruments, and those principles and practices recognised by the judgements of Maltese and international courts.

Within GANHRI, the nations whose ombuds bodies have a human rights mandate and have been given an A Status are : Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Estonia, Finland, Georgia, Latvia, Lithuania, Moldova, Portugal, Cyprus, Slovenia, Spain and Ukraine.

The Office of the Parliamentary Ombudsman of Malta (“the Office”) has all the credentials to become the NHRI of Malta provided the  Ombudsman Act 1995 is amended and improved to include the human rights mandate.  The present legal and operation structure of the Office is already robust enough to meet the challenge and can be further strengthened in future.

International standards recommend that NHRIs’ enabling legislation should include functional immunity provisions to protect them from risks to their independence and effectiveness. This is because, despite their importance, NHRIs can be subject to legal and practical challenges including political pressure, budgetary constraints, and legislative restrictions that undermine their independence and effectiveness. 

To address these challenges, international standards recommend that NHRI laws include functional immunity, defined as ‘protection from both criminal and civil liability for acts undertaken in good faith in their official capacity to shield them from external influence and legal harassment. 

In Malta, within the framework of the Ombudsman Act 1995, this immunity for the Ombudsman for the investigation of administrative acts or omissions is already in place and cannot be  challenged on the merits in any court or tribunal.  Furthermore the independence of the Ombudsman is guaranteed as he is not be subject to the direction or control of any other person or authority.

The Office has to report to the House of Representatives that funds its operations and appoints the Ombudsman, and is totally detached and independent of Government and the public administration in general.

It is a proven fact that the ombuds system can be an accessible complement to the courts because its form is not rigidly fixed and can be varied to suit the characteristics and needs of society.  It is a system that provides an informal, independent, and impartial process, with relative speed and without cost to the complainant.  

The Maltese ombuds-system experience has shown that the fact that recommendations following an investigation do not carry  enforcement power does not diminish the effectiveness of the Office or manifest a weakness.  On the contrary recommendations have brought about changes to the better in the methodology of the public administration.
This positive experience can likewise be the case where human rights are concerned in that the Ombudsman may be able to encourage human rights progress in other ways. 

Should the Ombudsman be legally assigned the office of promoter and protector of the fundamental rights and freedoms of the person in Malta his functions would include the following:

1. to promote and protect all fundamental rights and freedoms;
   
   
2. to investigate without any limitation whatsoever alleged breaches of fundamental rights and freedoms of the person by  the  Government  of  Malta including its ministries and departments, specialised units, agencies, government entities, commissions and boards as defined in the Public Administration Act, and by regional and local councils established under the Local Government Act, and by organisations involved in public-private partnerships as defined by the Organisation for Economic Cooperation & Development, including by their officials, employees and other representatives. Such investigations are initiated either on his own initiative or on a written complaint lodged in accordance with this Act by any person, even if assisted or being represented by any association, organisation, or legal entity;
   
   
3. to work in favour of the elimination of the abuse of fundamental rights and freedoms of the person;
   
   
4. to encourage the development of a culture of respect for fundamental rights and freedoms of the person;
   
   
5. to enhance public knowledge and understanding on fundamental rights and freedoms of the person;
   
   
6. to submit to Government, Parliament and public bodies, on an advisory basis, either at the request of the authorities concerned or on his own initiative, opinions, recommendations, proposals, and reports on any matter concerning the promotion and protection of the fundamental rights and freedoms of the person;
   
   
7. to monitor and examine the drafting and the implementation of national policies related to fundamental rights and freedoms of the person, and to make such recommendations as he deems appropriate in order to ensure that these policies conform to the fundamental rights and freedoms of the person;
   
   
8. to examine and keep under review the adequacy and effectiveness of legislative or administrative provisions in force, as well as bills and legislative proposals, either at the request of the authorities or on his own initiative, and to make such recommendations as he deems appropriate in order to ensure that these provisions conform to the fundamental rights and freedoms of the person and, if necessary, to recommend the adoption of new legislation, the amendment of legislation already in force and the adoption or amendment of administrative measures;
   
   
9. to monitor and promote the harmonisation of national legislation, regulations and practices with international fundamental rights and freedoms of the person, instruments to which Malta is a party, and their effective implementation;
   
   
10. to prepare reports and to commission research on the national situation with regard to the fundamental rights and freedoms of the person, or on any subject or on any other specific sector related to said rights and freedoms;
11. to provide independent assistance, including legal assistance where and as he may consider appropriate to victims or potential victims of breaches of their fundamental rights and freedoms by  the  Government  of  Malta, including its ministries and departments, specialised units, agencies, government entities, commissions and boards as defined in the Public Administration Act, and by regional and local councils established under the Local Government Act, and by organisations involved in public-private partnerships as defined by the Organisation for Economic Cooperation & Development, including by their officials, employees and other representatives;
    
    
12. to maintain consultation and, where he considers appropriate to better fulfil his functions, to cooperate with governmental organisations responsible for the promotion and protection of the fundamental rights and freedoms of the person, or the elimination of violations to said rights, or which are devoted to protecting vulnerable groups;
    
    
13. to contribute to the formulation of programmes for the teaching of, and research into, the fundamental rights and freedoms of the person, and to take part in their execution in schools, colleges, universities and other educational establishments;
    
    
14. to cooperate with other organisations in order to promote and protect the fundamental rights and freedoms of the person;
    
    
15. to participate, contribute to, and share information with other international entities in international fora for the global and regional development of the fundamental rights and freedoms of the person;
    
    
16. to provide the necessary knowledge and skills in order to facilitate the implementation of legislation on the fundamental rights and freedoms of the person, enforceable in Malta through the use, among others, of training and awareness raising campaigns;
    
    
17. to advocate for the ratification of, accession and compliance with international human rights standards.
18. to publish any material which he considers to be of public interest;
    
    
19. to institute proceedings in his own name relating to alleged breaches of the fundamental rights and freedoms of the person by  the  Government  of  Malta including its ministries and departments, specialised units, agencies, government entities, commissions and boards as defined in the Public Administration Act, and by regional and local councils established under the Local Government Act, and by organisations involved in public-private partnerships as defined by the Organisation for Economic Cooperation & Development, including by their officials, employees and other representatives, before the Civil Court, First Hall in its constitutional jurisdiction when he is of the opinion that a legal provision is unconstitutional;
    
    
20. to be notified of every application lodged in accordance with article 46(1) of the Constitution of Malta and article 4(1) of the European Convention Act (Chapter 319) with the right to fully participate as intervenor in the proceedings; and
    
    
21. to perform any such other function as may be assigned to him by legislation.

The Parliamentary Ombudsman of Malta is here to serve. Whether his current mandate should be extended to include the promotion and protection of human rights and fundamental freedoms is for others to consider and decide.