The Malta Independent 19 May 2022, Thursday

Redefining the Office of the Ombudsman

Mark Said Sunday, 16 January 2022, 08:46 Last update: about 4 months ago

Our Ombudsman institution has been in place for almost 27 years now but its journey to date has been anything but smooth in spite of various amendments to the law, over the years, aiming to fine-tune the functions of the Office.  Ironically, while the Office is there to receive and investigate complaints lodged by the general public and, where applicable, to recommend appropriate redress, it has itself, over the years, publicised and addressed a number of complaints to the Administration that be affecting and curtailing its proper functioning and authority originally intended by the law, such as when at one time details about confidential complaints submitted to the Ombudsman found their way into a report published by government.

The number of complaints since 1995 halved for various reasons, including the fact that, over time, many public bodies have been privatised and, therefore, the Office of the Ombudsman no longer has jurisdiction over them. The nature of complaints has also changed, as while in the past most complaints were related to utility bills, today there are a variety of more complex complaints such as, for example, relating to online gambling and citizenship issues.

In October last year, Ombudsman Anthony Mifsud, slammed the public administration’s lack of respect and understanding of the Ombudsman’s role to defend citizens. Government, reacting to recommendations made by the Venice Commission rather than to the Ombudsman’s criticism, amended the law setting up the office of the Ombudsman and relevant clauses in the Constitution.

When visiting the offices of the Ombudsman in Valletta, President George Vella had urged the authorities to take the necessary action so that the Ombudsman’s recommendations are implemented. Failing to respect such recommendations would undermine the power of an office that plays a very important role in democracy and the rule of law, he rightly cautioned.

Government, for reasons only known to it, failed to raise the power of the Ombudsman’s right to information to the Constitutional level, as was recommended by the Commission. A cardinal feature of the Ombudsman model is that the Ombudsman is independent, objective and even-handed. The Ombudsman is not an advocate or agent of the complainant. At most, the Ombudsman is an advocate for good administration and for practical and effective resolution of the problems that people encounter with the government. That distinction can sometimes be tested, especially in some of the specialist roles discharged by the Ombudsman. It is difficult for an Ombudsman to be a true champion of open government without a constitutional right to full information. Access to information is of paramount importance as the Ombudsman Office’s effectiveness is determined by the quality of its investigations. Because the Ombudsman Office does not have the authority to reverse executive or administrative decisions, its chief weapon is reasoned argument. One key tool in the toolbox is the thorough, demonstrably impartial investigation followed up by a well-reasoned report. Without far-reaching access to documentary and viva voce information, the investigative officer will be disabled from coming to sound conclusions of fact. Access to information denotes access to documents in their widest interpretation, electronic files and most importantly, to people at all levels.

In times of low trust in government and public institutions, rising expectations by citizens and a fluctuating voter turnout, government is called upon to renew its interactions with citizens in order to build an effective democracy and ensure inclusive growth. Open government can be defined as a culture of governance based on the principles of transparency, integrity, accountability and stakeholder participation. As such, it offers us an approach to restructuring our governance framework that puts citizens and their well-being at the heart of policymaking.

The Ombudsman, an institution that traditionally interacts closely with citizens and acts as a guardian of citizen rights and as a mediator with the public administration, is a crucial factor in this process. Its privileged contact with citizens as well as its expertise in the functioning of public administration puts it in a unique position to promote the principles of open government, both in its own functioning and in that of the public administration as a whole.

One particular suggestion I have concerns repairing the Whistleblower legislation in that the Ombudsman could be made responsible for providing advice and guidance to any employee who has made, or is considering making, a disclosure about serious wrongdoings on their workplace (either public or private sector). The Ombudsman could be designated as the Authority where a protected disclosure can be made.

For most of the time since its inception, the core Ombudsman functions have been the investigation of individual complaints and sporadic own motion investigation of government administrative actions, particularly issues of systemic importance. I believe that the Ombudsman should give greater focus to own motion investigations, primarily because of the more developed system for handling complaints within agencies. This enables the Ombudsman to concentrate more strategically on problem areas in government.

Generally, the Ombudsman is obliged to submit annual reports to Parliament and is given a possibility to submit special reports when deemed necessary. It should be noted that Parliament is usually obliged to consider these reports, but it does not proceed to vote to adopt them or not, rather formulate its own conclusions on the basis of the Ombudsman’s annual reports. To this end, it is the Parliament’s role to secure the implementation of the Ombudsman’s decisions, that is, reports and recommendations. Parliament should be a key interlocutor and partner of the Ombudsman. The impact of the Ombudsman’s final decisions (namely, recommendations) is not derived from binding, coercive or determinative powers, but from the rigour, objectivity and independence with which the Ombudsman conducts his/her activities. The non-coercive nature of the Ombudsman’s powers is perfectly suitable in the context of its working environment. In fact, here is the most suited opportunity for Parliament to jump in and push the public authorities to abide, exercising its essential function: oversight over the Executive.

 

Dr Mark Said is an advocate

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