There is no universally approved definition of the right to good administration. In the European Union, Article 41 of the European Union Charter for Fundamental Rights, provides for this right as follows: (a) a right to have one’s affairs handled impartially, fairly, and within a reasonable time by the institutions, bodies, offices, and agencies of the EU; (b) the right to be heard; (c) the right to access one’s file; (d) the duty to give reasons for decisions; (e) the right to damages when the right to good public administration is breached; and (f) the right to a reply in the same language of the complaint that is one of the 23 EU official and working languages. It is only the latter aspect that is enshrined in the Constitution of Malta, article 5(2) proviso. The rest of article 41 of the EU Charter binds Malta in relation to EU Law but not in relation to non-EU domestic law.

The Court of Justice of the European Union has developed this right to include the principles of legal certainty, equality, proportionality, and non-discrimination whilst the EU Ombudsman has published the Code of Good Administrative Behaviour to give better effect to this right.

I classify the right to good administration as a ‘framework’ right because it does not set out the principles involved therein. It is thus like an umbrella principle that allows for a pick and choose approach, or, if you want to put it in culinary terminology, an à la carte menu right, that introduces an element of flexibility for states. In the EU Charter for Fundamental Rights, it is a fundamental right. In Malta it has not yet achieved constitutional status (apart from the one instance mentioned above) and hence is not a fundamental right included in the human rights chapter of the Constitution (Chapter IV).

From an examination of the diverse definitions of the right of good administration available abroad, this right can be afforded a fourfold typology: a declaratory one, a narrow one, an extended one, and a combination of the first type with the second and the third, depending on the importance given to that principle by the legislative body. There is no impediment for a national law to adopt one type initially and then, at a later stage, develop it to another type or other types.

The Declaratory Type

The declaratory type simple states that the right to good administration is recognized by law. But its constitutive elements are not fleshed out, whether in detail or superficially. This does pose problems to the public administration, the Ombudsman, the courts, and the citizens as they would not know the exact breadth and depth of this principle. Although a constitutional instrument should proclaim such principle, this would have to be fleshed out by ordinary law.

The Limited Definition Type

When the legislator incorporates the right to good administration in statutory law, it does not suffice to enunciate this principle by itself without attempting to list, develop, or specific at least some of its constitutive ingredients. Indeed, from a practical point of view – bearing in mind that this principle must be applied by public administrators and interpreted by the Ombudsman and the courts, it is imperative that its constitutive ingredients are somehow defined. Essentially, there are two ways – to put it simply – how to define this right: either by identifying its core ingredients, the lowest common denominator, or by identifying ancillary embellishments to this right. By the former, I understand it to be a narrow definition; by the latter, a wider definition. Whatever approach is adopted by a legislature, some sort of concrete guidance ought to be given as to the extent, breadth, and meaning of this right. Possibly the elements can include the following 12 core principles: (a) the principle of lawfulness; (b) the principle of fairness; (c) the principle of equality; (d) the principle of independence; (e) the principle of legal certainty; (f) the principle of efficiency, effectiveness and acting within a reasonable time; (g) the principle of participation; (h) the principle of respect for human rights; (i) the principles of transparency and openness; (j) the principle of a reasoned decision; (k) the principle of indicating review, appeal, or reconsideration mechanisms from a decision of the public administration; and (l) the principle of an effective remedy, including compensation for damages sustained. These, perhaps, might possibly be adopted as the ‘core elements’ (or minimum requirements) of the right to good administration.

The Inclusive Type

This is a broad classification where each state could pick and choose those elements that are appropriate to it, developing the right to good administration progressively until one time all these additional elements are taken on board. These ancillary, consequential, and supplementary elements of the right to good administration comprise:

(a) observance of proportionality and impartiality;

(b) avoiding actual or perceived bias, conflict of interest, abuse of power;

(c) provision of access to records, documents, files, and other data that concerns the complainant allowing him/her a right to correct factual inaccuracies.

(d) developing and/or strengthening accountability mechanisms;

(e) fostering a climate of consultation;

(f) respecting legitimate expectations;

(g) achieving consistency, reliability, and predictability in decision making;

(h) establishing administrative simplification measures and one stop shop mechanisms;

(i) providing for both internal and external reviewing mechanisms;

(j) promoting the right to good administration and diffusing it as widely as possible through research, publications, and training initiatives;

(k) developing the right to good administration by establishing standards, guidelines, manuals, policies, codes of ethics, and codes of practices that give effect thereto; and

(l) extending the right to good administration to the right to good governance. One has here to distinguish between good administration and good governance. The former forms part of the latter. However, this article is restricting itself to only one aspect of good governance – the right to good administration.

The Combined Typology

The Combined Typology consists in the declaratory type being combined with either the core values model or the peripheral values model.

The Ombudsman has since the inception of this Office, in his Annual Report, referred to instances of maladministration by the public administration. Lately, the public administration is issuing reports in reply to the Ombudsman’s Annual Report setting out how Ombudsman recommendations have been implemented or otherwise by it. In these reports, the public administration details, ministry by ministry, all follow up action taken by it in response to Ombudsman recommendations. The latest report, the fifth one, by the public administration is dated February 2023.

Certain conclusions can be drawn from the above.

First, the right to good administration is not universally defined. Nor is there a universal definition of this right at Mediterranean level that has been adopted by Mediterranean States.

Second, each regional institution and state that recognise such right have their own particular definition of this right.

Third, there are four types of how to define the right: the declaratory model, the narrow definition mode, the ancillary elements model, and the combined model.

Fourth, not all states declare the right of good administration in their constitution.

Fifth, not all states declare the right of good administration in their ordinary laws.

Sixth, some states adopt constitutive elements of the right to good administration without, however, referring to the concept as such.

Seventh, the right to good administration is adopted in some states either directly or indirectly through reference to some of its constitutive ingredients.

Eighth, the time is ripe at international and regional level to adopt a common standardised definition of the right to good government and setting out its constitutive ingredients.

Ninth, in the case of Malta:

(a) the right to good administration has not so far been declared specifically back on white in the Constitution, though it is referred to in one instance in the Constitution and in other laws. In this respect Malta suffers from the Dr Jekyll and Mr Hyde split personality syndrome – when applying EU Law, the right to good administration is a fundamental right; when applying national law, it is not a fundamental right;

(b) elements of the right to good administration are found in Maltese Law thereby making the Maltese model one that falls under the core type;

(c) both the principles of good administration and good governance are known to Maltese Law, yet none are defined and their constitutive elements are not set out in these laws; and

(d) there is still room for improvement in this branch of Administrative Law. Nevertheless, the right to good administration has so far not attained the status of a general principle of Maltese Administrative Law.

Finally, the right to good administration is not solely intended to ensure that the public administration complies with the strictures of the law – as a judicial authority would undertake – but, in the words of EU Ombudsman Emily O’Reilly, ‘to expect an institution to do whatever is possible within the law in order to achieve outcomes which are fair and reasonable in all of the circumstances’. For at times two solutions may present themselves to the public administration, both may be in conformity with the law, one that helps the complainant and one that does not. It is this proactive problem-solving approach – rather than problem-creating approach – that should animate the public administration is implementing the right to good administration.

Kevin Aquilina is Professor of Law at the Faculty of Laws, University of Malta