It's all about dignity

If one were to write an objective appraisal of contemporary history in Malta, one can only conclude that the present government has worked relentlessly to set up and strengthen the institutions that safeguard democracy in this country.

Be it the office of the Ombudsman, the Judiciary, local councils, pluralism in broadcasting, Parliament and its committees, the Office of the Auditor General, rights of recourse in terms of the European Convention on Human Rights, review of administrative discretion, devolution of various powers, an autonomous University, or for that matter investigative journalism made easier through a more liberal Press Act.

This is not an exhaustive list. The truth is - you name it and the credit at the end of the story line goes to the present government. Not only does the credit belong there, but this approach comes in sharp contrast to how Labour has viewed and still views power.

As the Prime Minister explained at the mass meeting held on the eve of Independence Day, our belief in offering the citizens of Malta the further protection of European Union directives and regulations in all matters that mean so much to one and all, be it in environmental or consumer protection, regarding rights of workers or health and safety issues, fits in within the philosophy of a government that wants to be bound by rules that makes its commitments towards the people enforceable even at that level, rather than simply relish in unbridled power for its own sake. Not so Labour, and hence their fear of EU rules!

That is why the fuss that Labour tried to create over Government's response to remarks made by the Ombudsman in a section of the local press sounded to any discerning person as artificial and hypocritical. One would have assumed that another democratic fundamental is that if Government is taken to task by any person, it has the right to respond and make it own views heard.

The present government set up the Ombudsman office in 1995. The former Labour government had been promising to do so for many years. It had made the promise as early as in 1971 in its electoral programme, but it never delivered on it. On the contrary, the same Labour government in 1981 had amended the Code of Organisation and Civil Procedure to remove any vestige of judicial review of administrative discretion.

When the Nationalist Party was elected to office in 1987, it had initially set up an Injustices Commission to look into a multitude of cases where persons who suffered one form or other of administrative injustice could seek redress. By the time the law setting up the office of Ombudsman was going through Parliament, the Commission had settled close to 5,000 cases and awarded Lm1 million in compensation.

In November 1993 the present government had published a document entitled "The Change Continues..." indicating various reforms that were to be taken in hand. One of these was the setting up of the Ombudsman's office and that is what led to the publication of a White Paper on this subject early in 1995. Even, at this stage, it was made clear that the nature of this office requires that the Ombudsman cannot be partisan, but must act in an independent and judicious manner. The public was given a month to send in any responses for consideration before the eventual publication of a bill to set up this office.

The bill to set up the office was debated in Parliament in June of that year. It provided that the Ombudsman would have full access to all files and other documents or information that could be regarded as relevant to complaints that he would be investigating. He would also have the power to subpoena witnesses, to investigate the way that Government operates at all levels, to look into complaints raised by citizens, to investigate of his own initiative any matter that he deems so requires, to run his office in an open and transparent manner as well as to report to Parliament on an annual basis and in particular cases as may be necessary.

The law also provided for the appointment of a person to serve as Ombudsman only if he would have the backing of at least two-thirds of all Members of the House of Representatives, and that once appointed he would have security of tenure. Joe Sammut was appointed Malta's first Ombudsman in a ceremony held for the purpose at the Palace, Valletta, on July 31, 1995. He was then reappointed five years later for a second term.

An immediate question that comes to mind and that has been raised editorially by The Times is: given his seven years in office, was it only now the Ombudsman came to the conclusion that he should speak out the way he did? An Ombudsman is there to investigate complaints, try where possible to induce the authorities concerned to reach an acceptable settlement with the complainant, as well as to report on the cases presented to him and make recommendations. Once a year he submits a report to Parliament about his work but he is also free to submit separate reports that are case or subject specific where he feels that this is called for not least because his recommendations are not being heeded.

That means that there are precise parameters within which the Ombudsman is expected to fulfil his mission. Within those parameters he can be critical of the administration if he feels that a particular situation so warrants. He would do so within the ambit of the report he presents on any case he has investigated, or if he feels that the case so warrants, even in a specific report to Parliament.

Over the past seven years, the Ombudsman has dealt with 4,715 complaints and carried out 2,916 enquiries. That is a total of 7,631 investigations. In only 10 cases, did he feel a need to report to Parliament. That represents a meagre 0.131% of all cases dealt with. Dealing with such an impressive case load speaks highly of the Ombudsman's efficiency and the importance of his office. The fact that he then only felt the need to report directly to Parliament about one-tenth of one per cent of his caseload must speak volumes in favour of Government doing its part to make this institution of its own making work and to respond as far as humanly and legally possible to the various recommendations made, irrespective of whether or not Government would be in agreement.

Why then, after seven years, accept to be interviewed by a newspaper, describe Government's arguments as 'unbelievable', talk in terms of 'accommodating' individuals, equate a case of slight bodily harm on an Enemalta official (where, apart from court action, the corporation had dismissed the person responsible) with the attempted murder of Richard Cachia Caruana, and use such loaded and partisan phrases as 'friends of friends'?

We do not expect judges, before or after delivering a judgment, to proffer interviews about what they are discovering! Equally we do not expect referees even in cases where they suspect foul play by one team to join forces with the other team and try to score goals themselves!

The bottom line is one of correct behaviour and of dignity. Even during last week's debate, Government was not trying to cast any doubts about the importance or workings of this office which it remains proud to have set up in the very first place, nor for that matter about the workings of the man entrusted to run the office. Government was however again making the point that the dignity of this office requires its holder to refrain from making inroads that are or even appear to be within the realm of partisan politics. That is the arena for politicians and not for Ombudsmen while in office!

I believe that Sir Brian Elwood, president of the International Ombudsman Institute, summed it up brilliantly earlier this year when he wrote: "What is required is that an Ombudsman be given independence and so conduct him/herself impartially when acting in a review capacity. Generally, an Ombudsman with a review function should avoid the temptation towards advocacy for particular causes except the outcome following from a specific investigation.

"A tendency towards general advocacy by a reviewer can quickly destroy the perception of impartiality of the reviewer to the detriment of the review process and the reviewer. As a result, there needs to be a clear separation between review and advocacy functions for the Ombudsman institution to retain the specific and international credibility it has earned."