The Malta Independent 26 September 2016, Monday

Watch: Ombudsman against making his own recommendations enforceable by law

Kevin Schembri Orland Monday, 4 January 2016, 10:19 Last update: about 10 months ago

The issue of enforceable recommendations by the Ombudsman has been a topic of debate in the past. However interestingly, Ombudsman Joseph Said Pullicino, would not be in favour of such a change.

In an interview with The Malta Independent, he said: “If our recommendations become enforceable, then we would essentially be no different from the Courts, and as a result the concept of the Ombudsman would be nullified. We are mediators out to help the citizen. Once you give an authority enforceable powers, they would need to observe the process in the same way the courts would, and so would need to give, for example, the opportunity of confrontation and the rule of due process in our investigations would need to be followed.”

The Ombudsman explained that his office looks at the substance of each case, to see whether an administrative act is right or wrong, just or unjust.  The law is important, but it is not everything in our case. “We do insist that our decisions be considered seriously and carefully”.

“Though our findings are not enforceable, they carry the weight of the Office. Today, the Office has become a Constitutional Authority, and as a rule, the majority of cases where recommendations are made, see those recommendations followed”.

“If the recommendations are not followed, we have the right to send our Final Opinion to the Prime Minister, and then Parliament which can consider the recommendations should it so chooses”.

Judge Joseph Said Pullicino’s appointment as Parliamentary Ombudsman is due to expire this March.

He was Chief Justice before taking the office, which he held for nine years. “Adapting yourself to the position of Ombudsman, from the position of Chief Justice was the first challenge. My job as a judge was to listen and decide - and my decisions were binding. Here you listen, decide, but no one has to abide by my decisions. Another difference is that here, there is a strong human element, building relationships with people”.

“I found a very well organised office, and I didn’t find any major problems in the administration of the office”.

He has introduced the concept of Commissioners, to handle specific areas, such as health, education, environment and planning. “It was a long process and allows for stronger specialisation by this Office”.

The Commissioners are autonomous, he explained, adding that he does not go into the technical merits of their cases, but rather only checks that the process used was correct, that no abuse occurred and that the regulations regarding the Commissioners are adhered to.

The number of reports tends to vary depending on the country’s circumstances. Therefore before and after an elections, the number of complaints decrease. “One imagines that people try to get what they need from government at this time. I would say the level of complaints in general, however, is the same as last year. This does not necessarily show the level of contentment in a country and I don’t believe in statistics in this regard. The job of an Ombudsman is to run himself out of a job.

The quality of cases is also important, he said, adding that people’s satisfaction with the work of the office is a high priority.

 

High public trust rating

The Ombudsman enjoys a high public trust rating. “Like a Judge, decisions by the Ombudsman appease one side, and angers the other”.  

High levels of trust have been constant, he said. “The reason for this office having a higher trust rating than government and parliament is due to this Office being impartial,” he said.

There will also be political elements that effect trust levels, but you take those in your stride.

“I believe that the reaction to the Ombudsman Institution is positive, even when this office does not find in favour of complainant”.

This office also asserts its independence, the Ombudsman explained, adding that people know the office is here to help them. “Other institutions are independent and impartial, like the courts, but Judges are there to judge, and not to directly help the people who come to them”.

As for the type of complaints, this is determined by the social and economic situation in the country. “Over the past ten years a leap in the quality of complaints was observed. Apart from addressing complaints, this office also tries to improve the administration,” he explained.   “Thus a major function of this Office is to investigate  how certain areas of the administration can be improved to help the citizen”.

An example of procedure

The Ombudsman described the process his office goes through whenever a complaint is brought forward. “A person could make a complaint verbally at the office, or through email. Once this occurs, I decide whether to handle it myself, or pass it on to one of the Commissioners if it falls within their remit. An investigating officer is appointed to retrieve the facts and file a preliminary report. The Commissioner or the Ombudsman will then read the reports and make any necessary checks, later releasing a Final Opinion, stating whether the complaint is justified and, if so,  make recommendations on what redress should be given. The report is sent to the department concerned and to the complainant”.

As previously stated, the Ombudsman can send a case to be debated in Parliament. However the Office noted negative results in this respect, as cases had generally throughout the years been ignored. “It was so bad at one point that we just stopped sending reports there, as it became pointless. Generally the reports we would send would as a rule be those that affect a large number of people rather than an individual. We have called for these reports to be referred to Parliamentary Committees and be discussed. This would allow them to be discussed in public, would see public opinion and then a political opinion as to what will be done with the said report. This, however, is currently lacking”.

In the case of health, we have made some progress. One of the functions agreed functions of the Parliamentary Committee for Health is to review reports referred to Parliament by the Commissioner for Health.”.

Constitutional change

“We defend citizens, as well acting as the conscience of  the public administration. Our job is to analyse issues of good governance and report on them. We propose that this office should have the same constitutional status as the Auditor General. This Office is recognised as a constitutional authority, but the appointment of the ombudsman and the assurance of its independence is protected by law, but not by the constitution. We want this to change”.

Appeal filed in army complaints case

Turning to the army complaints saga, where the courts ruled that the Ombudsman has jurisdiction to hear complaints made by army officers, the Ombudsman said that an appeal has been filed by the Home Affairs Ministry and will be heard next February. Asked whether the Ministry has passed on any of the information that the Ombudsman had requested regarding this case, he said; “pending the appeal, the government is right not to send any information, since we cannot further investigate these complaints until the final decision in Court on jurisdiction is made”. Attempts are being made to try and find a solution out of court, but we always press that these officers have the opportuniry to exercise their right under the Ombudsman Act to submit their complaints to the Ombudsman. We don’t impose on government on how they formulate laws. If government changes the law stating that such cases would no longer fall under my jurisdiction then I would bow my head to Parliament”.

Turning to the Ian Borg case, He said that the Commissioner submitted his recommendations to Mepa, and the Office received a negative reply. “The Commissioner now has to decide whether he wishes to move forward by forwarding the case to the Prime Minister for his consideraion. This decision is his. It is not a special case.  It will be decided on and assessed according to normal procedure”.

A course in Ombudsman law here in Malta

The Ombudsman is a member of the Association of Mediterranean Ombudsman. “We meet once a year, and one of the ideas put forward by my Office was for an International Institute for Ombudsman law be set up in Malta. Ombudsman laws in the Mediterranean vary from one country to another, and we felt it would be useful to have a Masters Course that would teach the principles of the Ombudsman, about good governance etc. There was a lot of support for this in the association, he said, and was also shown support by the EU. The problem lies with financing. Government said it would support us”. The Institute will be housed within the new Ombudsman building, he said.

“Since the course is aimed for post-graduate students from developing countries who would not be able to pay for the tuition costs, we would need a scholarship fund. We believe that a minimum of at least 15 scholarships are needed for the course to be economically viable. We are currently checking whether such funding would can be made available”.

The course would be conducted in conjunction with the University of Malta which would provide the nucleus of the academic body while visiting foreign lecturers specialised in Ombudsman legislation would participate in teaching sessions, he said.

 

The institute has been modelled on the idea that gave birth to International Maritime Law Institute. Definitely a success story. “I believe that the International Ombudsman Law Institute could also help to promote Malta as an active centre to advance the principles of good governance in Mediterranean countries, in the context of a foreign policy based on Euro-Med dialogue between states having different cultures, traditions and legal orders”.  

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