According to the Ombudsman

Having acted as Parliament's watchdog for almost 10 years, Ombudsman Joseph Sammut says Maltese institutions still lack a culture of awarding financial compensation to aggrieved citizens. Two-and-a-half years after being lambasted for criticising the government in an interview, he told Massimo Farrugia he would do the same again if need be.

Politicians are all too often heard talking about how the public service must become more accountable, transparent and efficient. Some people believe them, others grin in cynicism. But if there is someone who takes them at their word, it is Ombudsman Joseph Sammut, who hears and investigates complaints by citizens who feel aggrieved that their right to a good public service has been breached.

"Good administration means treating the public properly, fairly, openly and impartially. If any of these criteria has been breached, then there has been bad administration and I uphold a complaint brought before me."

Mr Sammut believes that while the law itself specifies whether a public body has infringed citizens' fundamental rights or not, the Ombudsman should see whether the law has been interpreted correctly and in a rigid manner.

"It doesn't mean that if something is according to law, it is just, especially if those empowered to administer the law use their discretion in a discriminatory way," Mr Sammut said.

He mentioned local councils as an example. "They feel they should not pay financial compensation to redress grievances. They say that only the courts can award financial compensation. This is very wrong, because if you created an injustice or inconvenience and there is a justified complaint, you must put the person affected in the same position he would have been if the act of maladministration had not occurred. People should go to court as a last resort."

A case Mr Sammut recently brought to public attention concerned a Gozitan who was booked for breaking traffic regulations in T'Alla w Ommu hill in Naxxar even though neither he nor his car had been in Malta at the time of the alleged offence.

When the case was heard at the Mosta local tribunal, the Gozitan presented his car's logbook and was acquitted after it turned out the warden had made a mistake. The man claimed Lm20 from the Naxxar local council in compensation for the expenses incurred and the inconvenience he had been through but before the intervention of the Ombudsman he had received no reply from the local council.

"Local councils are assuming more roles and a lot of people now rely on their services. We receive grievances mostly related to traffic contraventions and parking arrangements. The councils are usually very cooperative. The problem is when they come to implement recommendations."

Taking a look at some data that is to feature in the annual report to be published soon, Mr Sammut said local councils surpassed the Malta Environment and Planning Authority to head the complaints list last year, with 54 cases against Mepa's 44.

In the case of Mepa, Mr Sammut thinks things have improved. He said, however, there is still a long way to go, especially when it comes to enforcement and taking direct action.

"Mepa has recently appointed an auditor to deal with complaints. Besides being familiar with planning legislation, I think the person appointed is fair and just and his appointment improved things. I myself can rely on the findings and facts established by him if people come to me.

"Yet, I feel that Mepa is not consistent in taking enforcement action. They say they have more than 6,000 cases to enforce and they do not have adequate resources to do it. At one time they quoted me out of context by saying 'even the Ombudsman recognised the problem'. Of course I did, but it doesn't mean that Mepa can be inconsistent or complacent with illegal developers. I reported to Parliament about the lack of enforcement action by Mepa, pointing out where I thought action should have been taken.

"I find that the main reason why people complain is that Mepa often fails to take action because it anticipates that the rules and the guidelines are going to change, and if they are changed, an irregular development will become legal. That is wrong, because people who have inside knowledge can get away with illegal developments. Like that, action is postponed indefinitely. In one of the cases I mentioned, enforcement action had been pending for about 11 years," Mr Sammut said.

In 2001, a flood of complaints came in from aggrieved members of the armed forces following a mass promotions exercise undertaken by the army. Following the appointment of Brigadier Carmel Vassallo at the helm of the army last year, Mr Sammut said things looked positive with the new commander. But does he still receive complaints about promotions in the armed forces? How has the situation changed?

"Although the top people in the AFM are very cooperative, considerate and professional now, if there were to be promotions again, there would be a lot of complaints even if things are done in a regular and equitable manner. After four years there should have been promotions."

Mr Sammut explains that if 400 or 500 people are promoted at one go, as happened in the last exercise, people who are not promoted feel aggrieved even if there are justifiable reasons for having superseded them.

"If you have a staff complement of six sergeants and you know that last year two of them retired because of age, you should appoint another two immediately. If the AFM gives promotions at least once a year, they will replace people in the same ranks. The inordinately long period that elapses before giving new promotions will create new problems. So it is a question of acting at regular intervals," Mr Sammut explained. He pointed out that besides his own suggestions, there was another report by Martin Scicluna suggesting that promotions should be given regularly.

What about the accountability of government agencies, authorities and corporations that are independent of the civil service? In an interview in The Malta Independent on Sunday in September 2002, Mr Sammut had said these public entities were becoming less accountable and transparent, paying sky-high salaries and fringe benefits and spending public funds the way they liked. Is he still of the same opinion?

Mr Sammut said his opinion had been accepted by the administration and they are now taking steps to bring a number of these organisations to order.

"From an economist's point of view, the problems have had a bad effect even on the private sector, in the sense that public corporations raised the conditions of service to levels that were not justified. They started competing for manpower with the private sector. Those who work in the public service felt they were at a disadvantage as they had to fit into the scales of the public service. They are now a big burden on the Exchequer," he said.

But the 2002 interview had not simply created a national uproar because the Ombudsman criticised the over generous conditions of workers in public agencies. He had said Parliament was not taking an interest in his reports criticising government institutions outright. This had unleashed the government's fury to the extent that MPs spent the following month discussing the Ombudsman's comments in Parliament.

Mr Sammut's comments also became a political football as the opposition said he was right and government ministers said his remarks had been "highly inappropriate", objectionable, indiscreet and downright insulting.

Prime Minister Lawrence Gonzi, who was then Social Policy Minister, had said in Parliament the Ombudsman had undermined his own success in comments made in that interview and said he hoped Mr Sammut realised he had made a mistake and learnt his lesson.

Would he ever come out again in that way if the need arose?

Mr Sammut understands this and says that "the rules of the political game are very different from the rules of good administration, of the citizens' rights".

"My style is not arrogant," he said. "But if this is the only way to get the needed redress, I don't mind being arrogant in the interests of a citizen's fundamental rights. The only mistake I made in 2002 was that I misjudged the democratic maturity in our country."

Barely two weeks have passed since the government lambasted the Auditor General for his report on the Foundation for Tomorrow's Schools. The Prime Minister said it had been unacceptable for the Auditor to issue a back-dated report with no acknowledgement that measures were taken in the meantime to rectify the situation. It seems politicians hate to be criticised by a parliamentary watchdog, as Mr Sammut knows at his own expense.

"Nobody likes to be criticised. Of course, even government authorities and departments have a right to defend themselves when they are criticised, provided they do so objectively and that they accept or refute the criticism on facts. What is wrong is that they try to make political mileage out of what happens, indulging in personal attacks on the people involved."

Referring to his 2002 case, Mr Sammut thinks the final outcome was very positive. "Most of my criticism was directed at Parliament not the government or the opposition because I felt Parliament was not giving sufficient attention to my reports to put right what in my view merited attention. I was irked that I was sending a report to Parliament and nobody was taking any notice of it. What I had said in the interview had already been included in my annual report but nobody had read it.

"From then on, it appears that parliamentarians started reading my reports and, for the first time last year, the minister concerned spoke about one such report in the adjournment speech. I do not expect them to agree with everything. What I want is that they pay attention to my reports. The point I made then was that, keeping in mind that Parliament has its own priorities and its own limitations of resources, I felt the reports were not given the proper attention because the people require this and the law says so."

He said some people think the Ombudsman should not resort to the press as they regard the institution as a judicial body. "This is a wrong idea. I don't have the competence to enforce decisions, so the media is one weapon in the armour of the Ombudsman," Mr Sammut said.

But had the government's reaction hindered the Ombudsman's investigations into government departments and agencies? How did heads of department react after politicians commented the way they did?

"A lot of pending recommendations such as those related to members of the army were implemented after the interview. The outcry brought more people to the office and because of my firm stand, the Ombudsman institution gained more respect. Heads of department and chief executives of public agencies even said the Ombudsman is valuable and serves a good purpose as it keeps them on their toes. Some remarked the Ombudsman gives them a good indication of how to increase the citizens' confidence in their own institution."

Besides the armed forces, the government's inconsistency in awarding compensation and the parliamentarians' lack of interest in his work, the Ombudsman had mentioned the Department of Inland Revenue, which had to refund a lot of money in tax refunds.

"Complaints about Inland Revenue still reach the office. Most are about refunds of tax with respect to arrears prior to 1999. They adopted a policy of awarding refunds according to the year of assessment, giving priority to people with health problems and pensioners. This is a fair policy. My criticism is that this policy is not made known publicly and people expecting a refund do not know where they stand. I've been telling the Finance Ministry to make this policy known as suspicions are created unnecessarily. If a policy is not made known to the people, there is lack of transparency," Mr Sammut said.

Between 1995 and 2004 over 11,000 people approached the Ombudsman. About 7,000 of these filed written complaints while 4,200 were verbal inquiries. Of the written complaints, 76 per cent, or 5,300 cases, were admissible for investigation. In all, 58 per cent of the complaints made were upheld by the Ombudsman.

"When comparing these figures with countries such as Ireland, Cyprus and Slovenia you realise we are on the high side," Mr Sammut said.

Since the beginning of this year, about 200 people have approached the Ombudsman's office with a grievance; these included 113 written complaints. The rest have been enquiries by phone or through the website by people seeking guidance. "This is a high number considering we are still in March."

But the Ombudsman does not uphold all the complaints he receives as grievances vary "from the most serious to the ridiculous".

"Even the cases that seem frivolous need to be given time because for the person concerned it would be the biggest problem under the sun. People often turn to us to let off steam," Mr Sammut said, holding a pile of thank you cards he received from people who turned to him with a grievance.

Besides dealing with citizens' complaints, does the Ombudsman carry out investigations on his own initiative?

"Yes I do," Mr Sammut replied, adding he had conducted about 12 such investigations since his appointment.

"In carrying out these kinds of investigations, one has to be careful not to embroil oneself in political controversy because politicians try to make political mileage from such an initiative. So whenever I conducted investigations, I took up matters which are of national importance or are of concern to a lot of people."

Such investigations included one on mentally ill patients at Mount Carmel Hospital, another on the conditions of women prisoners and two on irregular immigrants, the latest being on immigrants at mental hospitals.

"In the case of irregular immigrants, we were overtaken by events, as the number increased and stretched our resources to the limit. So I did not take further initiatives on this matter as other initiatives, like the conference on immigration and the inquiry over the Safi incidents by Judge Franco Depasquale, have been taken."

Another investigation dealt with the gardens of Valletta - Upper Barrakka, Lower Barrakka and Hastings. Mr Sammut said his recommendations had been heeded because Upper Barrakka Garden, for example, had been upgraded. "But it is no use upgrading a garden and not maintaining it. Unless they are managed, the money that has been spent on them will go to waste".

Another investigation was about income tax and a later one was about the restructuring of Public Broadcasting Services the findings of which Mr Sammut is expected to present to Parliament in the coming days.

"Given the recent restructuring process in which the PBS workforce was downsized by about two thirds, it was expected that I would receive a number of grievances. I receive a lot of complaints after any major restructuring of a government company. This happened in the case of the shipyards' restructuring and even in the case of Air Malta," Mr Sammut explained.

He said restructuring was necessary as a number of public entities could not operate efficiently because of bloated work forces with disproportionate benefits and wages.

"Restructuring always leaves a blood trail because people lose their job and even if they receive a golden handshake they still feel they are a spent force. It affects their morale.

"In the case of PBS, most grievances arose from a lack of understanding of what the exercise was about. It almost amounted to a closure of PBS and starting the company all over again. In the process, a lot of workers who worked there for 20 or 30 years felt that because they had been there for a long time, they should automatically be on the staff of the reformed PBS. This was a misconception and it does not mean that all those who were not chosen had been treated unfairly.

"What was unreasonable was that clerks were disqualified for obtaining 59.89 per cent when the pass mark was 60 in their interview, for example. That is not only unreasonable, that's illogical. You don't fail people like that when there are vacancies to be filled."

Mr Sammut's term will end this July. It will be up to Parliament to find a substitute. But after almost 10 years as Ombudsman, Mr Sammut claims the office has been successful.

"This is based on the outcome of a survey. The Malta office is held in high regard by Ombudsmen of various countries and the EU Ombudsman."

While making sure the country raises the level of public administration, protecting the fundamental rights of citizens, the next Ombudsman should lobby for a Freedom Of Information Act, he said.

"This will increase transparency, which is the hallmark of modern, good public administration. The citizens and the press have a right to certain information, of course, with certain qualifications, but this right is missing now because we do not have this legislation. In most countries, the Ombudsman acts as an arbiter who ensures that the provisions of the Freedom Of Information Act are followed."

He thinks the media should have access to immigrants' detention centres. "Of course, there must be prudence on the media's part taking into consideration the prevailing circumstances. Sensational reporting will do more harm than good to everyone, including the immigrants.

"But I don't see why journalists should not be granted access. Even if the government is dealing with these people properly, it only creates suspicions among people and speculation on the conditions when a policy of no access is upheld," he said.