On 12 March 2010, a Bill was published in The Malta Government Gazette. Bill No. 48 is intended, if approved, to amend the Ombudsman Act. The long title of the Bill reads as follows: “An Act to empower the Ombudsman to provide administrative and investigative services to specialised Commissioners for Administrative Investigations, and to designate such Commissioners as Officers of Parliament.” From the long title of the Bill one gathers that the Bill is addressing two issues: (a) provision of administrative and investigative services by the Ombudsman to specialised Commissioners for Administrative Investigations; and (b) the designation of such Commissioners as Officers of Parliament. But a reading of the Bill indicates that it goes further than that.

An indication of this is given in the Bill’s Objects and Reasons which states that “The object of the Bill is to streamline the procedure adopted by specialised Commissioners for Administrative Investigations in the handling of complaints and in the determination procedure…”.

The historical antecedents to the Bill

It is interesting to note that although the Bill is being moved by the Government, it is the result of recommendations drawn up by the House of Representatives Select Committee on the Strengthening of Democracy. On 14 December 2009, an Interim Report was published on the House of Representatives website under the signature of the then Speaker, The Hon. Dr. Louis Galea LL.D., M.P. The Bill seeks to codify the recommendations agreed to in the interim report into legislative proposals.

Difficulties posed by the Bill

The difficulty about this proposed legislation is that whilst it addresses institutional reform in so far as the emergence of sector Ombudsmen is concerned (even if it does not do so holistically for that matter), yet Government has not taken the opportunity to reflect on the workings of the office of Ombudsman, since its inception in 1995, to see what measures are needed to update the Ombudsman Act. For instance, five points immediately come to mind and this is, of course, not an exhaustive list.

1. How to go about in implementing those Ombudsman recommendations which have fallen by the wayside. Surely there must be ways and means how to address this issue to ensure that Ombudsman recommendations are implemented by the public administration to the full.

2. The thorny relationship between the Public Service Commission (PSC) and the Ombudsman, more so in the light of the Public Administration Act, which will see the latter enactment granting the PSC powers which hitherto were vested in the Ombudsman. What is the position where two Constitutional organs – the PSC and the Ombudsman – do not see things eye to eye and the PSC refuses to implement Ombudsmen recommendations? Why is this issue not addressed in another Bill to amend the Constitution? Indeed, one asks: does Malta still require a vestige of past colonial times, the PSC, in this present day and age when there is an Ombudsman who is an Officer of Parliament and who is already carrying out the duties which the Public Administration Act is granting to the PSC? Why all this overlap and duplication of functions?

3. The evolved role of the Ombudsman investigating human rights claims. The point has been made in the Ombudsman’s Annual Reports but, to date, has fallen on deaf ears.

4. The codification in the Ombudsman Act of the Principles of Good Administration.

5. The total – not partial – cooperation and coordination of sector Ombudsmen with the Ombudsman’s office. I have here in mind the Police Board, the Commissioner for Children, the Data Protection Commissioner, the Freedom of Information Commissioner, the Equality Commission and the Commission for Persons with Disability. All investigative functions of the said entities should be carried out by the Office of the Ombudsman not to continue replicating unnecessary bureaucratic structures which come at a hefty expense to Government and to ensure uniformity in investigative procedures and consistency in recommendations.

The Bill as drafted goes a long way at improving the relationship between the Ombudsman and certain sectoral Ombudsmen specified therein whilst guaranteeing their autonomy in recommendation making.

However, the Bill unfortunately does not go the whole hog to address pending issues in so far as the Office of the Ombudsman is concerned and in so far as all sectoral Ombudsmen are concerned.

It is indeed a pity that Parliament – which has this chance to address these issues – will probably stop short from taking advantage of this one time golden opportunity to update the Ombudsman Act to present day needs.

Professor Kevin Aquilina

Head,

Department of Public Law

Faculty of Laws

University of Malta