Nearly seven years ago, then ombudsman Joseph Said Pullicino noted in a report that the ombudsman’s ability to secure results in his role as effective defender of citizens’ rights depends on the quality of the arguments he makes, the respect he commands and the moral authority inherent in his office.
In October last year, his successor, Anthony Mifsud, slammed the public administration’s lack of respect and understanding of the ombudsman’s role to defend citizens.
This summer, the government – reacting to recommendations made by the Venice Commission – amended the law setting up the office of the ombudsman and relevant clauses in the constitution.
The ombudsman and the auditor general are two institutions that continue to enjoy the people’s trust and respect, also because of the strong arguments they make and the moral authority they exercise, within the limits of the law. For both can only make recommendations but are not empowered to take or order remedial action to be taken.
When he visited the offices of the ombudsman in Valletta earlier this month, President George Vella urged the authorities to take the necessary action so that, when possible, the ombudsman’s recommendations would be implemented. Failing to respect such recommendations would start to undermine the power of an office that plays a very important role in democracy and the rule of law, he rightly cautioned.
His message is perfectly in line with the principles enunciated by the Venice Commission in a document adopted in March last year, when it noted that ombudsman institutions have an important role to play in strengthening democracy, the rule of law, good administration as well as the protection and promotion of human rights and fundamental freedoms.
A delegation of the Venice Commission had found, after a visit to Malta in late 2018, that the ombudsman had too weak an institutional position to provide sufficient checks and balances.
It was in reaction to these comments and the recommendations made that the government moved a bill in parliament to amend provisions regulating the office of the ombudsman.
The Venice Commission welcomed some of the changes made, such as empowering the ombudsman to initiate and conduct investigations in an independent manner and ensuring that his annual report to the House of Representatives is debated in a dedicated parliamentary sitting. However, the Council of Europe’s constitutional experts raised doubts on certain aspects. For example, they pointed out that a narrow interpretation of the clause giving powers to the ombudsman to investigate complaints could hinder NGOs from making submissions on issues of general concern.
They also make two points that have a direct bearing on the respect the ombudsman should have from the authorities. One is about the right to information and the other on the necessary support and cooperation the office should have from government bodies.
The government failed to raise the power of the ombudsman’s right to information to the constitutional level, as was recommended by the commission.
There are vital issues that are essential for the proper functioning and independence of the ombudsman, who has to be able to take action independently against maladministration and alleged violations of fundamental rights affecting individuals and legal persons, it noted.
More needs to be done to make the ombudsman an effective guardian of citizen rights.
As things stand, he finds himself in the same predicament as the health experts who fear political decisions are harming efforts to contain the pandemic. Like them, the ombudsman can only prescribe the treatment but it is up to the government to administer it.
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