Bill No 48: The Ombudsman (Amendment) Act
Written by Kevin Aquilina Thursday, 10 June 2010 06:35 Last Updated on Thursday, 20 January 2011 16:18
1. Object and Reasons of the Bill
On 12 March 2010, a Bill was published in The Malta Government Gazette. I am here referring to Bill No. 48 which is intended, if approved, to amend the Ombudsman Act, Chapter 385 of the Laws of Malta.
{readmore}The long title of the Bill reads as follows: “An Act to empower the Ombudsman to provide administrative and investigative services to specialized 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 specialized 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 specialized Commissioners for Administrative Investigations in the handling of complaints and in the determination procedure…”.
2. The Historical Antecedents to the Bill
It is interesting to note that although the Bill is being moved by the Government – as has normally been the case since Independence – the Bill, as a matter of fact, 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.
3. The Bill in a Nutshell
In an Editorial in The Times, of 7 April 2010 entitled ‘Strengthening the Office of the Ombudsman’ which was commenting on this Bill it is stated as follows:'A Bill has just been published containing amendments to the Ombudsman Act. The draft legislation proposes a wider definition of government entities from whose decisions the citizen may complain to the Ombudsman. These include government agencies established under the Public Administration Act 2009, government foundations and any chairman, member of a board, committee, commission or other decision-making body making decisions that affect the public.
The Bill will strengthen the institution of the Ombudsman by enabling him to investigate complaints dealing with maladministration insofar as the whole public sector is concerned. Here, perhaps, the Bill can even go further by empowering the Ombudsman to investigate even privatised companies that render services hitherto provided by the government, such as telecommunications and postal services. These services are also the subject of complaints by citizens but, as things stand, members of the public cannot complain to the Ombudsman once such services are not offered by the government or its entities. Pity because, given the fact that the government has and is still embarking on the privatisation of more and more services, making private service providers accountable to the public is becoming increasingly more relevant.
Perhaps the landmark initiative of this Bill is that it will group sectoral Ombudsmen within the office of the Ombudsman. Today, as the law stands, there are a number of Ombudsmen that are appointed for particular sectors. Each sectoral Ombudsman is appointed under a different law than that of the Ombudsman and not all such laws contain the same level of detail as to how investigations into citizen complaints should be conducted.
The Bill correctly attempts to bring about a harmonised procedure into administrative investigations to be followed by these sectoral Ombudsmen, which the Bill now designates as Commissioners. The Commissioners, when appointed, will be served by the Office of the Ombudsman even if they will still retain their independence from his Office in their decision making.'
4. Deficiencies of the Bill
The said Editorial continues as follows:
'What appears lacking in the Bill and, hopefully, will be addressed when discussed in committee stage in the House, is the strengthening of the role of Parliament in providing redress to citizens. The Ombudsman does not deliver binding decisions but recommendations addressed to the public administration. At times, the latter does not implement all the Ombudsman's ecommendations. This is not done capriciously but for valid reasons. This can be deduced from the bulk of the Ombudsman's recommendations being implemented by the public administration.
But there still remain those handful of complaints where the citizens' grievances remain unsatisfied. In such cases, the citizen should be entitled to a remedy, more so where the Ombudsman has found in favour of the citizen. Parliament should, thus, play a more active role in ensuring that any unsolved complaints are settled in the best interests of good administration and to satisfy the legitimate expectations of citizens with the implementation of the remedy recommended by the Ombudsman.
One augurs that the Bill will empower the citizen against governmental maladministration while providing adequate means of redress to the citizen by Parliament in those cases where the public administration fails to implement adequately the Ombudsman's recommendations.'
Undoubtedly, the Editorial makes valid points but, perhaps, does not go as far as one would wish it to go.
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.
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.
The thorny relationship between the Public Service Commission (PSC) and the Ombudsman, more so in the light of the Public Administration Act, which will 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?
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.
The codification in the Ombudsman Act of the Principles of Good Administration.
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.
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