The Malta Independent 5 August 2021, Thursday

The right to good administration

Mark A. Sammut Sassi Tuesday, 15 June 2021, 11:46 Last update: about 3 months ago

The Ombudsman remedy in Malta: Too soft a take on the public administration? Author: Ivan Mifsud. Publisher: self-published, 2020. Pages: 169 pp

This self-published monograph by Dr Ivan Mifsud LL.D. Ph.D. is remarkable from many angles.

To begin with, it seems it was first conceived as a report, and then written as a monograph. This is understandable, as there's in Malta a pitiful absence of a proper place where to debate ideas. Dr Mifsud proposes a number of improvements to the "Ombudsman Remedy". For this characteristic alone, it's a rare and admirable example of private initiative kick-starting public debate. Moreover, Dr Mifsud's ideas are undoubtedly good and deserve further debate and even eventual implementation.

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Frankly, I feel like writing a diatribe about the lack of serious public debate in this smallest EU member state. Already we're insignificant on account of our size and will become even more insignificant if the dreams dreamt up in the most recent G7 summit come true. Dr Mifsud's publication is an audacious attempt to grow out of such insignificance, at least on the intellectual level. The author sets out to convince his fellow countrymen that the public administration of the smallest EU member state desperately needs a serious approach and a series of innovations to instil efficiency, respect for human rights, and, in short, good administration. Dr Mifsud's monograph shows he's an apostle of "Good Administration", a creed that's probably considered heretic in this backwater country where gossip poses as politics and bickering as debate.

So, yes, my impression of Dr Mifsud's publication is utterly positive (save for the fact that it would have benefitted from an analytical index and a biography of the author). The book's remarkable under many aspects. It obviously contains a lot of legal stuff, which students and practitioners alike will find useful - Dr Mifsud expertly explains the law, its background and details. But for the general reader these won't be as exciting.

Instead, the general reader will find this monograph genuinely interesting for its numerous suggestions to transform our country into a rational place to live in. Why? Because the Ombudsman's role, to quote the author "is to scrutinise administrative acts, whether on his own initiative or upon receipt of a complaint from the general public" and to be "a watchdog with a positive, cooperative outlook, who highlights administrative shortcomings regarding them as lessons to be learned, errors to be avoided in the future".

Despite these noble goals, the Ombudsman's potential, argues Dr Mifsud hasn't been fully exploited. The Ombudsman has been "denied a role overseeing Freedom of Information legislation" and "even his proposal to lead a National Human Rights Institution in Malta was turned down". That's not all. To add insult to injury, in 2017 government "went to great lengths to disprove the Parliamentary Ombudsman" in what "appears tantamount to an overreaction by an administration which does not take kindly to criticism".

Dr Mifsud makes a forceful argument in favour of the "Right to good administration" understood as including the right of every person to be heard, before any individual measure which would affect him or her adversely is taken; the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy and the obligation of the administration to give reasons for its decisions.

Government seems not to be too keen on this right. Not introducing it is a constant reminder that Malta embraced the "Ombudsman form" but not "what he stands for". "This," writes Dr Mifsud in one of the monograph's most striking passages "is also a setback for the Maltese people, who were denied not only a formal protector of their human rights, but also a specific, new and potentially extremely effective human rights addition to their weapons arsenal in case of litigation against the government."

This is precisely how the public expects academics to write: forcefully and relevantly, "the more so since the Maltese Ombudsman accused the Public Administration of adopting a 'siege mentality' with regard to transparency, openness and cooperating in his regard" (to quote Dr Mifsud's preface to the monograph). I concur fully with Professor Kevin Aquilina's remark in the book's foreword that "this monograph has also a utilitarian, in addition to an academic and institutional reform, relevance". Academics should use their theoretical knowledge (which in the case of Dr Mifsud is coupled with first-hand practical experience) to keep the public administration on its toes.

Not all the recommendations made by the Ombudsman are implemented by the public administration, even though no insight is publicly available into the reasons why (pp. 61-62). This comment further strengthens the case for the usefulness of this book for public debate in Malta. Dr Mifsud argues that the Ombudsman's opinion carries weight thanks to the Ombudsman's reputation (p. 60) since, technically speaking, the Ombudsman isn't a court and cannot declare that an administrative act is contrary to law but can only conclude that an administrative act appears to be contrary to law (p. 67). To any level-headed citizen, this means that government has to embrace the philosophy behind the Ombudsman's role. This is sadly lacking.

What is this philosophy? The author "recommends that the main change called for is from within, one of approach, a question of ensuring that one's priorities as a servant of the taxpayer are in the correct order". This is the philosophy of public administration that all governments, of whatever hue, should embrace - once it's accepted, the Ombudsman's role fits in like a glove, creating a harmonious system of checks and balances in the interests of the common citizen.

Next time a parliamentary candidate knocks on your door, ask them not about libertine innovations to our code of morality but to tell you what they think of the Ombudsman remedy and your right as a citizen to Good administration. That's what politicians should be offering you, not all these supposed entitlements to spice up your life with vice and perdition. Also for this reason, the book should be available in Maltese too.

Acquire a copy of Ivan Mifsud's book. It's not long and, though it's written by a lawyer and deals with legal stuff, the style is flowing and highly readable. What do you get out of it? Two things - one, you'll understand how government is denying you quite a number of citizenship rights; and two, what you should ask of your next government.

 


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