Access to justice embodies rights that over a span of time have been determined and adopted by domestic and international bodies, including the right of the person to effective access to the courts, fair and equal access to the legal system and legal remedies, proper legal aid for persons who lack sufficient means, and the right of persons to enforce rights and seek redress.
The constitution is our democratic benchmark that watches over the operations of the state, makes sense of the rule of law and ensures that the fundamental rights and freedoms of all are safeguarded. Access to justice is a basic feature of the rule of law. People have to be enabled to exercise their rights fully, challenge discrimination and hold decision-makers accountable.
However, access to justice should not only mean having a case properly heard and decided necessarily in a court of justice, tribunal or quasi-judicial body. Indeed, there are other channels available for persons to seek and obtain justice.
Strengthening informal justice structures like the ombudsman can prevent disputes from escalating to the courts. The Office of the Ombudsman actually provides access to justice free of any charge or expense to persons seeking redress for grievances deriving from acts or omissions of the public service and/or the public administration.
One has to acknowledge that when things go wrong in public services, the public has to be given an opportunity to hold the authorities to account through procedures that do not necessarily involve litigation in court.
The ombudsman does not compete with the courts. It is not the role of the courts to improve public services or to encourage more efficient public service and /or administration. However, the ombudsman does have that function by providing effective recommendations. Through its investigations, the office strives to ensure the scrutiny and transparency of public services. It also helps bridge the gap between public bodies and the public, promoting resolution methodology possibly to avert litigation.
The courts pronounce judgments that could include executive orders that are enforceable according to law; their function is not investigative, like the ombudsman does. An evident drawback could be that investigations by the ombudsman following a complaint cannot proceed concurrently with litigation before the courts regarding the same grievance. The courts take precedence, meaning that investigations by the ombudsman would have to stop until the case before the courts is definitely settled.
The ombudsman cannot impose legally binding recommendations. This matter can be interpreted as a systematic weakness. However making the recommendations enforceable would in essence convert the ombudsman into a court thereby changing radically the nature of the institution, which is fundamentally structured and based on the confidence and trust that the public administration and the public alike have in the ombudsman’s ability to make an assessment of the facts based on fairness, equity and justice.
In the minority of recommendations that the public service and/or the public administration refuses to implement, the other voices of democratic debate and scrutiny have an obligation to intervene. If they choose not to do so, then democratic control on the administrative functions of public bodies stands to lose, not the ombudsman.
Through its investigations, the office strives to ensure the scrutiny and transparency of public services- Joseph Zammit McKeon
Whatever it takes, it is vital to provide alternative rather than exclusive means for persons to challenge unfair administrative action. That is the very essence of democracy.
The ombudsman is there to act as an independent constitutional office. When it investigates, the office can identify and address structural problems within the public service and/or the public administration in the public interest.
A complainant may not be satisfied with the manner in which an investigation is concluded. Nonetheless they are made aware of how public offices defended their position. That is really saying a lot. That is certainly not the function of the courts.
When public bodies act unfairly or mishandle situations or deny people their rights, the ombudsman provides them with a forum to put forward their grievances and possibly vindicate their rights with quick, private and informal action, saving money on protracted litigation, without losing any other rights of action so long as complainants take due care to safeguard prescriptive periods.
Unlike the courts, following an investigation, the ombudsman is able to explain to people the actions of public bodies. Depending on the findings, the office may recommend that a decision of the public service be changed or revoked.
A key objective of the ombudsman is to foster good public administration that is accountable, lawful, fair, transparent and responsive. When a complaint is found to be justified, the ombudsman becomes a defender of the person, and should the public administration persist in default, has the discretion to alert directly the prime minister and parliament.
Investigations by the ombudsman broaden access to justice. The administrative organs of the government stand to be held to account. They have to abide by the rule of law and transpose the fundamental principles of justice and fairness in their day-to-day operations.
For further reading on informal justice systems, I would suggest “Ombudsmen and ADR: A Comparative Study of Informal Justice in Europe” (PSLS) [2018] by Naomi Creutzfeldt, Professor of Law and Society at the University of Kent.
Sir Rob Behrens, former UK parliamentary and health ombudsman had this to say:
“She is a fine scholar whose research has relevance and resonance across the academic/practitioner divide. Her pioneering work on public attitudes to public trust in a range of ombudsman services is characterised by rigour, accessibility of style, and strong comparative analysis. It is rare for scholarly work to be enthusiastically debated in ombudsman circles, but Creutzfeldt’s writing constitutes an important set of considerations for the ombudsman and administrative justice communities.”
Joseph Zammit McKeonJudge Joseph Zammit McKeon is the parliamentary ombudsman.