MP suggests creation of administrative courts

Labour MP José Herrera said yesterday that the country needed to consider the setting up of administrative courts or some other mechanism to give redress in cases of maladministration, particularly if the current system where the ombudsman did not have executive powers was retained.

He made his comments during the second day of debate in parliament on the operations of the ombudsman and comments which the ombudsman, Mr Joe Sammut, made in a newspaper interview on September 1.

Another opposition speaker, Dr George Vella, said the government should have called an inquiry on the points raised by the ombudsman rather than launch a strong attack which only served to harm the Office of the Ombudsman, the credibility of the government, and the national interest itself.

At the start of yesterday morning's parliamentary sitting, Home Affairs Minister Tonio Borg said the government was not against the ombudsman. Had that been the case, it would be contradicting itself, since it had itself set up the institution.

Indeed, it was only under PN governments that legislation controlling the government's power was enacted. The government had also decentralised its powers.

The ombudsman had claimed that the Lands Department was "hopeless," and did not know how much it owed the people for expropriated land and when it would pay them back.

This criticism had come at a time when the department was actually handing out compensation at a far higher rate than ever before.

Furthermore, as from 1993, funds were being allocated immediately as land was expropriated.

The department had since 1999 paid land owners Lm12.7 million for their properties, compared to Lm4.9 million between 1994 and 1998. So was the department hopeless?

In 1983 the Labour government had even taken over land without contract and the new tenants themselves could not therefore buy the land which they had been allocated by the government, since the government was not legally the owner. Yet the original owners had not been paid either. This was a situation which the Lands Department was sorting out, and legislation had been enacted for the purpose. So was the department hopeless?

The ombudsman was very wrong to have claimed that this government was ignoring many of his recommendations. Indeed, many recommendations were taken up even when the government disagreed with them. But the government could not uphold recommendations which would lead it to violate the law.

It was worth pointing out that this government had even implemented recommendations made to the former Labour government which were not taken up by that administration.

That included recommendations on changes to contract conditions regarding properties allocated by the government and promotions at the Planning Authority.

With regard to MEPA, the ombudsman had complained of lack of enforcement, yet there was never as much enforcement as now.

Mr Leo Brincat (MLP) said the argument was not only whether the government should have attacked the ombudsman in such a hysterical and exaggerated manner, but that this criticism could be aimed at changing a watch dog to a lap dog.

The ombudsman had done nothing wrong in mentioning Tarcisio Mifsud and Richard Cachia Caruana because their cases were well known. It was possibly true that one case was more serious than the other. But when speaking about Mr Mifsud's case, the ombudsman had said he had suffered damages because of his position in a public corporation. The point was that the government should not decide whether or not to uphold recommendations on the basis of political grounds.

He could not understand why the prime minister was angered over criticism of public corporations, when 29 per cent of the cases which were upheld involved unjustified delays or shortcomings by the corporations. The ombudsman had warned, rightly, that the creation of new government agencies should not lead to an erosion of financial accountability. What was wrong in this?

It made no sense for the government to claim that worse things happened when Mr Sammut was administrative secretary in the public service. A person who wanted to bring about reform should not be criticised for systems which may have worked badly in the past. He would have been wrong had he not learned the lessons of the past.

The government needed to reflect on its irrational actions and the damage it had caused the institution of the ombudsman.

The fact that the Chair had not said a word on this case was worrying since the ombudsman was an officer of parliament. Through its inaction, the Chair had made itself look like being an extension of the government.

On what basis had the government argued that the ombudsman could not criticise the cabinet? The independence that the ombudsman enjoyed included his duty to criticise the government when that was justified.

Instead of attacking the ombudsman, the government would have done better to take action over the cases he had highlighted, Mr Brincat said.

Labour MP Charles Mangion said the government wanted an ombudsman who would keep his mouth shut.

The government's attack on the ombudsman was an attack on democracy and the parliamentary institution.

Notary Mangion suggested that the operations of the ombudsman should be debated in a sitting of the whole house at least once a year.

The Labour MP said the ombudsman was not arrogant when he criticised the way recruitment at Air Malta was made. Nor was he arrogant in insisting on compensation for Tarcisio Mifsud , who was beaten up clearly because of his position as financial controller of Enemalta.

As for the armed forces, everybody knew about the complaints made regarding the promotions system.

Parliament should condemn the government's reaction to the ombudsman's interview and it was the duty of the house to allocate enough time each year to discuss the ombudsman's recommendations.

Nationalist MP Michael Bonnici rejected the ombudsman's claim that MPs did not heed his reports and tabled copies of every ombudsman report, which he said, he had kept at home.

He said that the fact that the government, in a small number of cases, did not take up the ombudsman's recommendations did not mean it did not support the institution. Indeed there had also been cases where the government could not implement recommendations of the Commission for the Investigation of Injustice.

Mr Bonnici observed that according to a recent survey, 90.5 per cent of the people would go to the ombudsman if they felt they were unfairly treated by government institutions.

Referring to some of the ombudsman's reports tabled in parliament, Mr Bonnici said his report on the state of public gardens in Valletta had been acted upon, as recent information given by the government showed.

Extensive improvements had been made at Mt Carmel Hospital in the wake of a report by the ombudsman in October 2000.

As a former member of the Planning Authority board, he could also say that despite the ombudsman's complaints, many of his recommendations to the authority were discussed and taken up.

It was good that the people had confidence in the ombudsman, Mr Bonnici said, but the ombudsman should refrain from certain remarks which were not helpful to his office.

Labour MP José Herrera regretted that the courts did not like to intervene in administrative cases, even if they had a right to do so. This was wrong. The courts were supposed to be the only forum where remedies should be given in such cases.

Given such a situation, he felt one should consider giving the ombudsman some executive powers, making his position similar to administrative courts. Alternatively, one could introduce a system of administrative justice on a court level or widen the powers of the ordinary courts to get them more in line with the system in the UK while retaining the institution of the ombudsman as it was. Whatever system was chosen, a way had to be found for redress to be given when an injustice took place.

Dr George Vella (MLP) said clause 23 of the Ombudsman Act said the ombudsman may make such comments on matters before him as he thought fit. A document of the British Foreign and Commonwealth Office said that when the case merits it, the ombudsman could be severely critical of the department concerned and individual officials. "If necessary he does not mince his words."

In the wake of Barlow Close affair, the ombudsman found that many people had lost money on their investment because of maladministration by the Department of Trade. The UK government had disagreed with his findings, but out of respect, without admitting liability, it still made the substantial payments he had recommended.

While it was rare for the Commons to debate the ombudsman, because of the respect in which he was held, the Commons had a select committee for administration which monitored and discussed the activities of its officials.

The local ombudsman's frustration over how some of his recommendations were not being taken up, such as at MEPA, the AFM and Air Malta, had long been evident in meetings of the House Business Committee.

Clearly Malta too needed a forum to monitor and discuss the operations of the officials of the house, rather than have the intimidatory criticism made following the interview. As it were, nobody had done himself any good. The government, in particular, instead of denying the ombudsman's claims, acted like it was untouchable. Although the ombudsman could have used less dramatic language, wouldn't it have been better had the prime minister invited him for talks following his interview?

If the ombudsman's remarks on the AFM promotions exercise were not true, why not hold a parliamentary inquiry? Why had there been two weights and two measures in the compensation awarded to Mr Cachia Caruana and Mr Tarcisio Mifsud? In the former's case, how did the cabinet decide to award compensation when the motive of the attack was not known?

The ombudsman was not perfect but the government was scared of inquiries which would reveal its corruption and its web of connections.

But a country which called itself modern and democratic country should never have had the sort of moral violence directed at the ombudsman, who enjoyed the backing of both sides of the house and had spoken on matters which everybody knew about. Had he been the ombudsman he would have resigned and embarrassed the government.

The tragedy of this country was that many in the civil service were scared of speaking up when they saw irregularities taking place, fearing for their future. Everybody knew what happened to the former permanent secretary at the Agriculture Ministry, Mr Gauci Borda.

The government had clearly in its criticism sought to undermine the ombudsman so as not to have a thorn in its side. One could only wonder what would happen to those who stood up to the government but did not enjoy security of tenure.

Economic Services Minister Josef Bonnici said he could not understand how the ombudsman had argued that the attack on Tarcisio Mifsud was politically motivated, just becaue it took place two days after the elections. The court in considering the case had not found a political element in the case and the ombudsman had not produced proof to back up his claim.

Of course, cases such as this were unacceptable, but clearly this case could not be compared to the attempted murder on Richard Cachia Caruana, the prime minister's personal assistant.

Furthermore it had to be pointed out that the Enemalta employee who had attacked Mr Mifsud had been dismissed by the corporation after the court case, showing that the corporation had not taken this case lightly.

The rest of the sitting will be reported tomorrow.