Ombudsman Malta Conference – Opening Speech by the Parliamentary Ombudsman, Judge Emeritus Joseph Zammit McKeon Parliamentary Ombudsman of Malta

Mr Speaker
President Pottakis
Fellow Ombudsmen
Distinguished Guests
Ladies and Gentlemen

Welcome to the inaugural session of this conference, which it is my honour to host.

We have convened for two days of what I confidently expect to be a spirited, thought-provoking discussion on a subject that constitutes the core of an Ombudsman’s mission, namely, the quality and the temper of a person’s relationship with the public administration.

The title of the conference embodies a question : The Right to Good Administration:Myth, Aspiration or Reality ?

The remarks that follow sketch out some broad lines of enquiry.

Article 41 of the European Charter of Fundamental Rights establishes a ‘right to good administration’.[1]

Four apparently straightforward statements set out the substance of this right. The most important of these is that –

Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union.

The rest determine the right to be heard before any measure that could affect a person adversely is taken, the right to access personal files, the right to compensation for damages inflicted by the EU’s institutions and officials in the performance of their duties, and the right to communicate with officialdom in one of the Union’s official languages. The Union’s administration is also obliged to give reasons for decisions.

There is considerable debate among legal scholars as to whether or not the right to good administration conferred by Article 41 applies to the national and sub-national administrations of the EU’s member states;[2] the jurisprudence of the Court of Justice has not altogether clarified the matter.[3] Nonetheless, the Constitutions of approximately half the member states include provisions that bear some similarity to Article 41.[4] Furthermore, several Council of Europe resolutions address the theme of good administration and the protection of both individuals and groups in relation to the acts of administrative authorities, while resolutions by the UN Human Rights Council emphasize the role of good governance in the protection of fundamental human rights and freedoms.[5]

In Malta’s case, both the values embodied in the Constitution and specific provisions of the Public Administration Act converge on the duty of the State to provide good administration, although the right to be heard by administrative bodies, the right to compensation and the administration’s obligation to give reasons are notably absent from our legislation and administrative codes.

The foregoing observations draw attention to a substantive difficulty: beyond the apparent certainties of legal codes lie the complexities of modern governance, as well as the fluidity of the concepts and language that are presently employed.

What constitutes a right ?

What distinguishes a legally enforceable right from a mere principle ?

What constitutes ‘good’ administration ?

Are the terms ‘good administration’ and ‘good governance’ synonymous and inter-changeable ?

These questions, in turn, raise the question before us : is the right to good administration myth, aspiration or reality ?

I venture the view that the right to good administration is not a myth; rather, it subsists as a fundamental right, even when it is not articulated in law.

In the complex societies of the 21st century, the absence of a state apparatus through which the collective business of a society is transacted is inconceivable. That apparatus is necessarily endowed with enormous decision-making authority, as well as the means to extract resources and to enforce its decisions. In the absence of governing institutions, contemporary social and economic life would disintegrate into chaos ; against that, the Leviathan that is the contemporary State can, quite literally, crush and consume an entire society.

Viewed from either of these standpoints, ‘good administration’ is a ‘social attribute’ that is ‘essential to the adequate functioning of a human being’.

‘Good administration’ is clearly a near-universal aspiration. Ironically, even authoritarian states attempt to legitimize their rule with reference to a pressing need to provide steady, regularised and efficient administration. While their claims may well be specious, a democratic state’s aspiration to good administration is generally unequivocal. It is implicit in a Constitution that provides for limited, democratic, constitutional government. The rule of law and charters of fundamental rights and freedoms safeguard it, whether a right to good administration is embodied in law or not. Its constitutive elements may be enacted in administrative law codes, set out in codes of administrative conduct, as they are in Malta, or enunciated in judicial rulings.

It is less easy to answer the question whether the right to good administration is reality. In defiance of legal pronouncements and attempts at governmental reform, the evidence suggests three principal obstacles to the realization of the right.

The first obstacle is where State tradition is moulded by long periods of authoritarian government, even though a generation of steady democratization will recalibrate somewhat the profound power imbalances between the administrative authorities and ordinary citizens, it will rarely be sufficient to turn around the administrative culture regarding matters such as public consultation, transparency and accountability. Institutional resistance to the attitudes and norms of good administration is especially strong where clientelism is rife, civic competence is low and the avenues of redress are scanty.

The second obstacle to the realization of the right to good administration is limited governmental capacity. The first weaknesses that come to mind are poorly trained officials, or under-staffed and under-resourced administrative services. In addition, however, the public administration experiences capacity limitations on account of the challenges that emerged in the late 20th century.  These include rapid technological change ; social dislocation caused by mass migration and economic disruption ; contingencies such as the financial crash and pandemics ; as well as what are known as ‘wicked problems’, chief among which is climate change. These are existentialist challenges that tend to outstrip the expertise available to devise appropriate policy responses and to design efficient, reliable, responsive administrative systems. Moreover, they tend to engender fundamentalist attitudes and a correspondingly confrontational style of democratic politics which could adversely affect administrative morale and performance.

Thirdly, institutional mechanisms that provide remedies in the event of a breach of the right to good administration may be absent, weak, or not easily accessed by marginalized and disempowered social groups. Judicial remedies, though generally effective, may well be out of the reach of migrants and the poor.

Consequently, the Ombudsman institution, with its capacity for fast, informal, inexpensive resolution of complaints assumes an extraordinary importance for disadvantaged persons and social groups. Its investigations disclose systemic weaknesses in both policy and administration and propose remedial action. In championing the right to good administration, the Ombudsman helps to safeguard other fundamental rights.

Our deliberations today and tomorrow will examine these issues from four standpoints.

This morning, we begin by reviewing the institution itself and the right to good administration.

Tomorrow, bearing in mind that the Ombudsman is embedded in the State as a defender of the persons, we will consider both its position within the State as well as its relationship with the people.

To give content and to enrich the theme of the conference, we have with us formidable line-up of speakers.

I really look forward to listen to them all.

My final words :

Prior to the present crisis in the Middle East, representatives from the Office of the Ombudsman in Israel, Palestine and Egypt had confirmed their active participation in this conference.  Due to the crisis and other reasons, they could not be present with us.  I send them all my best wishes and assure them that they are all in my thoughts and prayers.  My sincere hope is for an immediate cessation of all hostilities and of the bloodshed of so many innocent lives.  At the same time my hope is for a lasting solution to all the root causes of the crisis, convinced as I am that unless solutions are found, then in this crisis there will be no winners but only a never-ending loss.

I now invite the President of the AOM and the Ombudsman of Greece, Dr Andreas Pottakis, to make his address.

[1] European Union Agency for Fundamental Rights: European Charter of Fundamental Rights, Title V, Article 41: https://fra.europa.eu/en/eu-charter/article/41-right-good-administration#international-law

[2] Cf, for example, Kristjansdottir, M. V. (2013), ‘Good Administration as a Fundamental Right’ Stjórnmál og Stjórnsýsla, Vol.9(1), 237-255.

[3] Warin, C. (2023), ‘Op-Ed: The right to good administration remains in the shadow (C421/21 Dual Prod)’, European Institute of Public Administration, https://www.eipa.eu/blog/op-ed-the-right-to-good-administration-remains-in-the-shadow-c-412-21-dual-prod/

[4] EU Fundamental Rights Agency, Article 41 – Right to Good Administration: National Constitutional Law. https://fra.europa.eu/en/eu-charter/article/41-right-good-administration#national-constitutional-law

[5] EU Fundmental Rights Agency, Article 41 – Right to Good Administration: International Law. https://fra.europa.eu/en/eu-charter/article/41-right-good-administration#international-law

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