Browsing through the European Network of National Human Rights Institutions' (NHRIs) website, I regrettably noted that Malta was conspicuous by its absence from its membership list of National Institutions that are given an A status by the GANHRI sub-committee guided by the principles of transparency, rigour and independence.
It is interesting to note that the majority of national institutions in that list are found within the specific country's Ombudsman legislative and institutional framework.
It transpires that way back in October of 2013, the then Parliamentary Ombudsman, Chief Justice Emeritus, Joseph Said Pullicino, proposed that the Office should act as a catalyst and focal point of other national institutions and authorities both public and private, having a specific human rights mandate to coordinate and converge their activities from a national perspective.
It is a sensible proposal and warrants an extension of the statutory functions of the Office of the Ombudsman.
This would provide the country with a comprehensive overview of the level of protection of individuals against violations of their fundamental rights.
The proposal was to the effect that an autonomous Commission be headed by the Parliamentary Ombudsman composed of national bodies and representatives of non-governmental organisations having a strong human rights content in their functions. The proposed Commission would be autonomous and not part of government and would carry out its duties in full independence and be accountable to Parliament.
The proposed Commission would not substitute specific authorities and organisations that have a strong human rights element in their functions or hinder them in the proper exercise of their responsibilities. It would be intended to act as an umbrella organisation keeping them together with the common purpose to oversee the level of human rights observance in a comprehensive and holistic manner.
Most important of all, that proposal envisaged the designation of the Office of the Ombudsman as the Maltese NHRI that would encompass and be required to work in consultation with other local authorities, entities, institutions and NGOs.
Regrettably, though, the government of the day chose to leave that proposal by the wayside and, instead, opted to go its way by enacting a law setting up the Human Rights and Equality Commission in 2019.
The members of that Commission hardly enjoy any sufficient stability of mandate and any guarantee that they are not removed for political reasons. Furthermore, the Commission lacks technical capacity and has inadequate financial and human resources.
Still, the Office of the Ombudsman is, to date, informally considered to be Malta's NHRI by international authorities, including the European Ombudsman, the Commissioner for Human Rights of the European Union and the Commissioner for Human Rights of the Council of Europe, the UNHCR and others.
Having an NHRI in Malta would be unique as it would be a national institution with a legal mandate to promote and protect human rights domestically in an independent manner. Contrary to other national institutions, it would be accredited with an internationally accepted quality label, on the basis of its compliance with the UN Paris Principles.
The UN Paris Principles require that such a national institution be established under a primary law or the Constitution, have a broad mandate to promote and protect human rights, and enjoy formal and functional independence. It must practise pluralism, representing all aspects of society, and have adequate resources and financial autonomy.
It must be free to address any human rights issue arising and annually report on the national human rights situation. It must cooperate with national and international actors, including civil society.
Through its advice, an NHRI would provide concrete recommendations to ensure national laws, policies and practices comply with international human rights standards and operate in a way that will help improve a particular human rights situation. It might relate to a specific situation, event or location, or it might concern an issue involving broader civil, political, economic, social or cultural rights.
An NHRI would generally develop advice on a human rights issue at the request of parliament, the government, a court or another State institution, in response to or following investigation of a complaint it has received or on its own initiative (suo motu) in response to an issue brought to its attention.
Such an institution would be well placed to identify those groups that are most at risk within our country through its regular human rights monitoring, by analysing human rights complaint data and by engaging with civil society organisations and other stakeholders.
By raising awareness, providing advice, monitoring and holding authorities to account, it would have a central role in navigating the great human rights challenges of our day, tackling both persistent concerns like discrimination and inequality, and novel issues such as the rights implications of artificial intelligence.
Any eventual NHRI would provide an important vehicle for influencing business and human rights outcomes. From its unique position, it can exert significant influence by raising awareness, conducting training, advocating with business and government, engaging in National Action Plan processes and recommending law reform.
It would be a leading institution playing a role in advancing all aspects of the rule of law and contributing to an effective Parliament, dynamic civil society organisations and alert and responsive media. It would be able to identify protection gaps in our national human rights systems and providing recommendations on how to address them, conduct human rights education and engage with international human rights mechanisms.
Human rights is a force to reckon with, not because it serves the interests of the powerful, but because it captures the imagination of the powerless.
Dr Mark Said is a lawyer