The Ombudsman Remedy in Malta – Speech by the Parliamentary Ombudsman at Quarterly Law Seminar

 

Speech by the Parliamentary Ombudsman

Judge Emeritus Joseph Zammit McKeon

entitled ‘The Ombudsman Remedy in Malta’ 

at the Quarterly Law Seminar

organised by the Malta Chamber of Advocates 

in collaboration with the Office of the Ombudsman, the University of Malta and the Malta Law Academy. 

26 th April 2023

 

The objective of the Office of the Ombudsman is to translate into facts a public service culture distinguished by, fairness, dedication and accountability. Furthermore, to promote and possibly implement into our corpus juris what I consider as fundamental the right to good PUBLIC administration.

A sincere thank you for inviting me to make this presentation this morning. Shortly after my retirement from the Bench on the 19 March 2021, I was requested to serve the country as Ombudsman.  That request I accepted because the common good takes priority.  And the common good is the interest of the country. On the 6 March 2023, Parliament approved my nomination by a unanimous vote. I took the oath of office on the 8 March 2023.

HISTORY

The Office of the Ombudsman (as known today in the international scenario) owes its origin to the Constitution of Sweden of 1809.  The rise to power of Parliament in Sweden after years of internal struggle led Parliament to appoint an Ombudsman as an entity independent from the Executive, and from Parliament itself with regard to functions and decisions.

The appointee to the Office was to ensure that laws were observed and that civil servants lived up to their obligations. The word itself means agent or representative.  The Swedish incumbent was, and still is, more accurately designated as the Justice Ombudsman. In fact his jurisdiction extends not only to officers of public service agencies but also to the judiciary, which in Sweden is a career service.

One hundred years later, the office of Ombudsman was replicated in Finland.  In 1955 there was a significant development when the Danes appointed their Ombudsman.  He was not  given jurisdiction over the judiciary, and the balance between the general oversight of agencies and the resolution of particular complaints shifted towards the latter. It is this Danish model that was followed in New Zealand in 1962.  In turn the New Zealand legislation formed the basis for the various offices of Ombudsman in Australia.

MALTA

The Ombudsman Act 1995 (Chapter 385) was preceded in substance and partly in content by the Investigation of Injustices Act 1987 [Act No. XV (15) of 1987] whereby the Commission for the Investigation of Injustices had the power to investigate any written complaint made by any person who claimed to have sustained injustice in consequence of any undue distinction, exclusion or preference made or given to his prejudice or any disability or restriction to which he was subjected by any action taken by any person to whom the Act applied.

The investigations of the Commission ranged from complaints in respect of appointments of public officers to licences or permits required by law to contracts for the supply of goods and services or facilities.  The Commission heard and decided all complaints that were submitted.

The jurisdiction of the Ombudsman by virtue of Chapter 385 as initially enacted is much wider than Act No. XV (15) of 1987.  Following the 2010 amendments to Chapter 385 such jurisdiction applies mutatis mutandis also to the three Commissioners.

For the sake of analytical completion, I must also mention that in 1997 Parliament passed the Tribunal for the Investigation of  Injustices Act (Chapter 394) which was a tribunal for the hearing of complaints of certain injustices occurring between 1987 and 1995.  For a time the Tribunal was presided by a Judge in office and later by a Magistrate in office until all complaints were heard and decided.

SOURCE

You will find an accurate and fair account of the Ombudsman Institution in Malta 1995 – 2020 in the book edited by PROFESSOR EDWARD WARRINGTON from our University entitled “Serving People and Parliament”.  It should prove to be very interesting reading for all who want to know about the evolution of the Institution in these Islands.

Chapter 385 was modelled on the OmbudsMEN Act 1975 of New Zealand in the state that law was in 1995.  The NZ Act was kept updated over the years (internet shows the 22 October 2022 as the date of the last version).  As regards Chapter 385, the last amendments were those of 2020.

CONSTITUTIONAL OFFICE

The enactment and coming into force of Act XIV (14) of 2007 introduced  a new section, that is, Sec 64A to the Constitution of Malta.

By virtue of that provision, the Office of the Ombudsman became a Constitutional Office : like the Auditor General but unlike the Commissioner for Standards in Public Life.

The Office was regulated only by ordinary legislation, that is, Chapter 385 until the introduction of Sec 64A into our Constitution.

Following the enactment and coming into force of Act XLII (42) of 2020, Sec 64A was further amended to introduce into the Constitution inter alia the mode of appointment of the Ombudsman.

By virtue of these latter amendments, the appointment of the Ombudsman was entrenched into the Constitution.

CHAPTER 385

HIGHLIGHTS

APPOINTMENT

The Ombudsman is appointed by the President following a resolution by Parliament approved by at least a two-thirds majority vote of MPs.  All four Ombudsman over the past twenty eight (28) years since the enactment and coming into force of Chapter 385 were appointment by a unanimous vote. The appointment is for a period of five years that is renewable for a further period of five years.  The incumbent remains in office until a new Ombudsman is appointed.  This provision was taken verbatim from the New Zealand Act 1975.

NATURE OF THE OFFICE

The Ombudsman is an officer of Parliament.  He reports to Parliament by presenting an Annual Report by not later than the end of June of every year.  He answers to Parliament even as far as the Budget of his Office is concerned.  In fact by the end of September of every year he must present to Parliament the Ombudsplan for the year to come.  He appears before the House Business Committee (which is chaired by the Speaker) and answers to MPs.  Upon approval of the Budget, the necessary funds are paid out of the Consolidated Fund. The accounts of the Office are audited by the Auditor General.  The audited accounts are published in the website of the Office.

THE COMMISSIONERS

Presently, there are three Commissioners: Environment & Planning, Health & Education. The need to appoint more Commissioners is a matter for the Prime Minister and the Ombudsman to determine together. The functions of a Commissioner are established by the Ombudsman after consultation with the Prime Minister.

The Commissioners are independent and autonomous from the Ombudsman in the exercise of their functions.  Like the Ombudsman, they are officers of Parliament.

The final reports of their investigations need not be submitted to or approved by the Ombudsman, though the Commissioners are free to consult the Ombudsman.

Their final reports are submitted to the Ombudsman for review solely for reasons of equity and natural justice.

Where, despite the report of a Commissioner for action or partial action, nothing is done then the Commissioner has to inform the Ombudsman, the Minister and the complainant.

I say that the method of appointment of the Commissioners is very balanced and totally distinct from the appointment of the Ombudsman

Although the appointment of the person to act as Commissioner is a matter for the Prime Minister and the Leader of the Opposition to agree on.  Should they not agree within three weeks following a written request by Ombudsman, then the person chosen by Ombudsman as Commissioner will prevail.

APPLICATION OF CHAPTER 385

The provisions of law apply both to the Ombudsman and to the Commissioners.

SEC. 12 

(a)        Government …

(b)       Statutory Body (Authorities etc) …

(c)        Local councils …

(d)       Partnership or other body where Government has a controlling interest or effective control …

With regard to this LAST body to which the Act applies, I wish to make an aside.

First of all I wish to say WELL DONE to the Ghaqda Studenti tal-Ligi for working on and launching their Judicial Review Bill.  The reasons for the Ghaqda to put forward the Bill are commendable.  Particularly noteworthy is their effort to study this area of law in order to widen the catchment net of persons who should be given the opportunity to avail themselves of remedies.  The Ghaqda`s reference to the notion of “SUFFICIENT INTEREST” is certainly an encouraging departure from the rigidly legalistic and narrowly positivist application by our courts of the civil law notion of “JURIDICAL INTEREST” to constitutional law cases and to lawsuits involving Sec 469A of Chapter 12.

One reservation I do have.

This relates to that part of the definition of “PUBLIC AUTHORITY” which refers to “body corporate which perform public functions”.

I state this because if the intention is to widen the area of judicial review, then I would have preferred the wider definition contained in Chapter 385, even though the definitions in the Proposed Bill and in Chapter 385 are certainly better than the one which results in Sec 469A.

PERSONS OR BODIES EXCLUDED

FIRST SCHEDULE

PART A

  • The President
  • The House of Representatives
  • The Cabinet
  • The Judiciary
  • Any Tribunal constituted by or under any law
  • The Commission for the Administration of Justice
  • The Electoral Commission
  • The Malta Broadcasting Authority
  • The Employment Commission
  • The Permanent Commission against Corruption
  • The Commission for Investigation of Injustices
  • The Attorney General in the exercise of the powers referred to in article 91(3) of the Constitution
  • Any Counsel or Legal Adviser to the Government acting in such a capacity
  • The Auditor General in respect of the functions under articles 108(5) and (8) 108 of the Constitution
  • The Armed Forces of Malta except as provided in Part B
  • The Security Service

PART B

EXCLUDED

UNLESS PROOF IS PROVIDED TO THE SATISFACTION OF THE OMB SHOWING THAT ALL AVAILABLE MEANS OF REDRESS HAVE BEEN EXHAUSTED :

  • The Public Service Commission
  • The Armed Forces of Malta in respect only of appointments, promotion, pay and pension rights of officers and men of the Force.

FUNCTIONS – SEC. 13

To INVESTIGATE any action … being action in the exercise of their ADMINISTRATIVE functions

The Ombudsman need not investigate alleged greviances which he deems trivial, vexatious, without personal interest.  If decides not to investigate, however, the Ombudsman must give reasons to the complainant.

SEC. 13

SECOND SCHEDULE

MATTERS EXCLUDED

  1. Any matter certified by the Prime Minister to affect the internal or external security of Malta.
  2. Action taken in matters certified by the Minister responsible for foreign affairs to affect relations or dealings between the Government of Malta and any other Government or any international organisation of States or Governments.
  3. Action taken by the Minister responsible for justice under the Extradition Act.
  4. The commencement or conduct of civil or criminal proceedings before any court of law or any tribunal in Malta, or of proceedings in respect of military offences under the Malta Armed Forces Act, or of proceedings before any international court or tribunal.
  5. The exercise of the power of the Prime Minister under article 515 of the Criminal Code.
  6. Any criminal investigation by the Police.

The operations of the Office of Ombudsman in relation to its primary function of complaint resolution has been summarised by Professor Gerald Caiden as a ‘democratic vision’ in pag 7 of his  “International Handbook of the Ombudsman : Evolution and Present Function” :

The ombudsman office is a unique mechanism of democratic control over bureaucracy ….

Its operations embody the concept of free choice and other democratic values.

The public can take their grievances elsewhere; they are not compelled to go to the ombudsman. They do so presumably because they expect it to satisfy them.

The ombudsman office can choose to align itself with the administration or the public; it is not compelled to take either side.

It is independent of both, acting as an impartial intermediary even if both administration and public misunderstand its position.

The administration can choose to aid or to stall investigations. With some exceptions and reservations, it usually cooperates.

Public agencies are saved public embarrassment and can correct their own mistakes.

Finally, the government and the administration can accept or reject the ombudsman’s recommendations.

A high proportion is accepted and quickly implemented because the proposals are based on concrete instances of malpractice, they emanate from a friendly critic experienced in the ways of public administration, and they have probably been worked out with the guilty party. If not, the ombudsman and administration negotiate further, and if that fails, they agree to disagree. All the participants try to reach unanimous agreement or at least acceptable compromise without resort to threats and power plays. They learn to appreciate each other’s point of view and to confess error without losing self-respect.

This piece was written in 1983.  It is still relevant today forty (40) years after.

OBSERVATIONS

  1. The Office of the Ombudsman is NOT a Court of Justice. In fact the Office does not DECIDE on actions but RECOMMENDS.
  2. I say that so should be the case as there is no appeal from the recommendations that the Ombudsman makes. In fact Sec 24 states that except on the ground of lack of jurisdiction, no proceeding or recommendation of the Ombudsman may be challenged in any court.
  3. Proceedings before the Ombudsman are privileged. So much so that by virtue of Sec 25 :

(1)        No proceedings, civil or criminal, shall lie against the Ombudsman or against any member of his staff for anything he may do or report or say in the course of the exercise or intended exercise of his functions under this Act UNLESS it is shown that he acted in bad faith.

(2)        The Ombudsman and such persons as aforesaid shall not be called to give evidence in any court, or in any proceedings of a judicial nature, in respect of anything coming to his knowledge in the exercise of his functions under this Act.

(3)        Anything said or any information supplied or any document, paper or thing produced by any person in the course of any inquiry by or proceedings before the Ombudsman under this Act shall be privileged in the same manner as if the inquiry or proceedings were proceedings in a court.

  1. The investigations by the Ombudsman are not only separate and distinct from proceedings instituted before any court of justice or tribunal or judicial body BUT ALSO alternative to the latter. Therefore no concurrence of proceedings is possible.  Judicial litigation takes precedence and any investigation by the Ombudsman is suspended until the judicial matter on the same subject matter becomes definite.
  2. Recourse to the Ombudsman does not suspend or interrupt prescription of any action that the person might have against the persons to which the Act applies. The Bill by the Ghaqda Studenti tal-Ligi contains a provision that favours suspension of prescription of a right of action for the time when the Ombudsman is investigating a greviance.
  3. The Office is intended to be an overseer of Government and its agencies, authorities etc. This is done mainly through the receipt of complaints from aggrevied persons. On many occasions these reveal deficiencies in public administration.  THEREFORE THE INVESTIGATIONS OF THE OFFICE CAN BE PRO-ACTIVE IN NATURE AS THEY MAY LEAD TO REAPPRAISALS BY THE PUBLIC AUTHORITIES ON THE WAY THEY PERFORM THEIR FUNCTIONS.
  4. Parliamentary Committees and the Prime Minister may refer to the Ombudsman matters for investigation provided they fall within the jurisdiction of the Ombudsman. The Ombudsman then reports to them.
  5. The Ombudsman cannot entertain a complaint with regard to action that occurs more than six months from the day on which the complainant first had knowledge of the matters complained of. HOWEVER the Ombudsman can conduct an investigation pursuant to such a complaint if there are SPECIAL CIRCUMSTANCES which make it proper for him to do so.
  6. The Ombudsman and the Commissioners have the right to carry out OWN INITIATIVE INVESTIGATIONS which are a totally different procedure from what I have just referred to. This has taken place in the past and will happen in the future as least until this incumbent will be in office.
  7. The Ombudsman can be a mover of change. He can take this role not only when he deals with individual complaints but also when he makes recommendations in relation to government policy and practices, and proposes changes to legislation.
  8. The Ombudsman receives ALSO general inquiries or grievances on actions that are outside his jurisdiction. People approach the Office of the Ombudsman  simply because they are in need of assistance of some kind, and do not know where or to who to turn to.
  9. Members of the public do not know, and indeed are not or cannot be expected to know, which government department is responsible for a particular activity. In providing assistance, the Ombudsman fulfills a significant function not only to the public but to government agencies as well.  In fact by directing people to the right point of inquiry, the Ombudsman saves various government agencies the task of having to ascertain a person’s needs and direct them to the appropriate agency. It also overcomes that most insidious of accusations that can be made against the bureaucracy, namely giving people ‘the run around’.
  10. Any action which improves the relationship between public servants, agencies and members of the community has a significant, albeit unquantifiable, impact on the effectiveness of government operations. A person who approaches an agency with a positive state of mind is much easier for the agency to deal with and is more likely to be able to explain his or her needs than a person who has become irritated about the likely response of the agency.
  11. When people resort to the Ombudsman, he must do his very best to give people a remedy possibly without delay. Until the 8 March 2023, delays in resolution flowed from undue time being taken by Govt et to respond to the Ombudsman’s requests. In the main, the system of COMPETENT and COMMITTED liason/contact officers within Govt et can serve as a real turnaround in greviance handling.  I really believe that the contact officers are of a sufficiently senior level to be able to resolve many issues themselves.
  12. While there is a general tendency to judge the success of an Ombudsman’s office by the percentage of instances where Govt et changes its decision after intervention by the Ombudsman, this is only partially correct as it overlooks the raison d`etre why there is need for an Ombudsman.
  13. There is a tendency to think that the Ombudsman provides a service to the less well off members of society while the well to do pursue their claims in tribunals and courts which have a power to overturn a decision. This could be only partially true. Decisions involving taxation, customs, export grants, etc, can affect the wealthier classes and the business community.  Therefore even they may resort to the Ombudsman.
  14. The Ombudsman can decline to investigate a matter where there are or have been other adequate means of redress available to the complainant under any other law. The Ombudsman may conduct an investigation if satisfied that in the particular circumstances it is not reasonable to expect the complainant to resort or have resorted to such means of redress. The Ombudsman will NOT decline to investigate a complaint should the remedies existing in the public service/public administration be not effective enough, inappropriate or be deficient from the point of view of impartiality or independence. On this matter I invite you to see the judgement of the Court of Appeal of the 31 October 2016 in re “Said Pullicino noe vs Ministru tal-Intern et”.
  15. Investigations by the Ombudsman are conducted in private. The Ombudsman may hear or obtain information from any persons as he thinks fit, and may make enquiries as he thinks fit. It is not necessary for the Ombudsman to hold any hearing, nor any person shall be entitled as of right to be heard by the Ombudsman : Provided that if at any time during the course of an investigation it appears to the Ombudsman that there may be sufficient grounds for his making any report or recommendation that may adversely affect any department, organisation, local council or person, he shall give to that department, organisation, local council or person an opportunity to be heard.
  16. The fact that investigations are conducted out of the public eye has its advantages. An admission of error can be made by an agency without publicity. This avoids the loss of respect that can flow from a public denial. It can also avoid exposing the agency or its Minister to accusations in the Parliament which can have unfortunate political consequences.
  17. One of the problems encountered by all Ombudsmen is a lack of knowledge of the existence of the office by members of the public. This is wrong and should be reversed.  That is why the principle of OUTREACH exists. At present the attention of the public to the existence of my office tends to be drawn haphazardly according to whether there has been some media publicity surrounding an investigation of a topical or sensational kind.
  18. Should the Office of the Ombudsman advertise its functions ? One point of view is a straight : NO. On my part I say YES. The public pays for the office through its taxes and therefore the public is entitled to know of the service that the Ombudsman can provide.
  19. It is fundamental to come to terms with a reality of fact i.e. that Govt. decisions must adhere to due process and must result in individual equity. This view is not necessarily accepted by those who see the perceived good of the community as being determined primarily having regard to economic measures rather than in terms of harm to persons.
  20. I insist. The Ombudsman is there ALSO to supervise the performance of Govt in its ADMINISTRATIVE function. The value of the Ombudsman as an independent office capable of assisting the Executive while not being part of it should be recognized and given credit.
  21. The Ombudsman has managed to recommend changes in practices, policies or legislation. Injustice revealed by a complaint to the Ombudsman’s office leads frequently to the Ombudsman recommending change for the better.
  22. The Ombudsman complements the work of Parliament. His role enables MPs to devote more attention to matters that have a high political policy content, matters which are unsuitable for the Ombudsman to pursue beyond the fact finding stage.  Unfortunately MPs DO NOT refer matters to the Ombudsman.  MPs should appreciate that the Ombudsman may provide a more effective avenue of review for a constituent than an MP pursuing traditional ministerial responsibility lines.  The red line for the Ombudsman not to cross is where political issues are directly involved in any considerations on his part. On the other hand, many have been the instances where the Ombudsman has in his reports recommended changes in legislation and/or Govt administrative policy.
  23. Funding the work of the Ombudsman. The mission of the Office is to grow in numbers, substance and reputation.  The core issue is that the Office is a cornerstone amongst the democratic institutions of this country.  If its work is to grow, if its relevance on the international scene has to grow, so also must its budget.  So far I must state that the Ombudsplan of the Office has always been approved by Parliament.  I sincerely hope that this positive outlook will be persist in future.
  24. As member of the Judicial Appointments Committee, the Ombudsman should be inquisitive in the executive in the execution of his role on the Committee and never a rubber-stamp.
  25. Is the Ombudsman a protector or defender of human rights ? This can be a “one million dollar” question.

Stricto jure the role of the Ombudsman was NOT designed to be a defender of human rights in the strict sense of the word. The legislator wanted the Ombudsman to be a critical collaborator of the public administration, a  watchdog, and a promotor of standards for good administration and practice.

HOWEVER the Ombudsman CAN foster the observance of human rights WITHOUT any manner going against the duties assigned to him by the law itself.

The RIGHT to Good Administration forms part of the  Charter of Fundamental Rights of the EU.

The Ombudsman handles human rights related issues and handles human rights based arguments to support position on particular matters [you may have view of this in  Case No HR0030 (2017) Case Notes 76]

Then there is Sec 22(1) of Chapter 385, which gives the Ombudsman every rights to state after making any investigation that in his opinion the decision, recommendation, act or omission that was the subject-matter of the investigation

  • appears to have been contrary to law
  • was unreasonable, unjust, oppressive, or improperly discriminatory, or was in accordance with a law or a practice that is or may be unreasonable, unjust, oppressive, or improperly discriminatory
  • was based wholly or partly on a mistake of law or fact
  • was wrong.
  1. One last observation. Taking into account that the Office of the Ombudsman has evolved positively over the years, I am of the opinion that the time is mature enough for the politicians to consider very seriously whether the   Commissioner for the Promotion of Rights of Persons with Mental Disorders (Chapter 525) the Commissioner for Older Persons (Chapter 553) and the Commissioner for Children (Chapter 462) should be integrated within the Office of the Ombudsman, raising their importance and profile by establishing a direct link with Parliament rather than the Executive through the Minister.

INTERNATIONAL LEVEL

  1. On the 8 March 2023, as freshly appointed Malta Ombudsman, I found myself in the role of Secretary and Treasurer of the Association of Ombudsman of the Mediterranean.

The AOM brings together over 30 OMB institutions that are all committed to the protection and promotion of fundamental rights in the countries of the Mediterranean basin.

The AOM enables the diffusion of experience and initiatives of the different member institutions thereby allowing for common enrichment and the enhancement of co-operation amongst members, and European and International partners.

The duties of States to respect the independence of Ombudsman institutions are enshrined in the Paris Principles of the UN and the Venice Principles of the Council of Europe.  Notable also is the UN Resolution on Ombudsman and Meditator Institutes adopted by the UN GA on 16 December 2020.

  1. The Malta Ombudsman has maintained excellent relations with the EU Ombudsman Office. I shall have the honour of meeting Mrs. Emily O`Reilly EU Ombudsman in Brussels next month to promote future initiatives.
  2. The Malta Office keeps close relations with the European Network of Ombudmen.
  3. I intend to strengthen the relations of the Malta Office with other Commonwealth bodies close to the Ombudsman.

CONCLUSION

I commence my conclusion to this presentation of today by the following points of information:

WEBSITE

ombudsman.org.mt is the official website of the Office of the Malta Ombudsman.  It is not perfect but certainly helpful as it keeps the public updated on the functions, activities and operations of the Office.  Please find a slot in your busy schedules to access the website and if you wish to make contact then do so.

REFERENCES

To make this presentation complete as reasonably possible, I have consulted the works of a number of academics and experts on the subject itself and on Public Law in general.

Two of these academics are present with us today :

DR IVAN MIFSUD. Dean of the Faculty of Laws at our University.  His monograph “The Ombudsman Remedy in Malta” is important for everyone who has a particular interest on the past and future of the institution of the Ombudsman.

PROFESSOR TONIO BORG. Professor of Public Law at our University. His work “Leading Cases in Administrative Law” traces the path taken by our Courts in an area of law that affects the relations between the person and Government.

I also consulted the works of PETER TYNDALL, Former Ombudsman of Ireland; and PROFESSOR DENNIS PEARCE,  Australia’s leading authority on statutory interpretation and the co-author (with R S Geddes) of Statutory Interpretation Australia. In November 2015 he published the 4th edition of his book Administrative Appeals Tribunal.

FINALLY

I wish to conclude with a positive announcement.

I am very glad to inform you all that with effect from the year 2023-2024 my Office, in collaboration with the Faculty of Laws at our University, will be launching :

“THE MALTA PARLIAMENTARY OMBUDSMAN

PRIZE IN LAW”

The SCOPE of the prize is to encourage research and knowledge dissemination on ombudsman-related subjects.

ELIGIBLE for the prize will be : All LLB Hons Students, Higher Diploma Legal Procurator Students, and Masters in Human Rights Law & Practice Students,  who present a dissertation/long essay on an ombudsman-related subject during a particular academic year.

THANK YOU

Judge Emeritus Joseph Zammit McKeon

OMBUDSMAN

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