The Ombudsman's right to air his views

Some time ago the Ombudsman, Joe Sammut, was interviewed by a Sunday newspaper reporter. He stressed that certain government agencies were not implementing his recommendations and thus were not performing their functions well. For example, the Ombudsman has been telling the Armed Forces since 1996 that the way they were handling promotion exercises was wrong and they had not done anything about it.

The interview raised a few eyebrows and Prime Minister Fenech Adami's Nationalist government lambasted the Ombudsman for airing his views in the media. In other words, the government wants the Ombudsman to keep his mouth shut in order not to be criticised unduly.

What the Nationalist government wants and expects is very far from reality.

Indeed the Ombudsman Act itself gives the Ombudsman the faculty to publish reports in the media. Also in the White Paper or the legislative proposals on the Ombudsman published in January 1995, the Nationalist government had suggested that the Ombudsman "must have the power to criticise the actions of ministers and the use of administrative discretion where it has been clearly unreasonable.... Where the administration refuses his recommendation on a pressing case, he should have the power to publicise this before he makes his annual report to parliament."

It seems that what the government itself had said way back in 1995 is not applicable today, as the government is hinting that the Ombudsman should not air his views in the media on those decisions the government is refusing to implement.

Authors on the subject argue that the right of the Ombudsman to air his views in the media is self-evident in democratic systems.

Conversely, in systems where democracy is less firmly entrenched, legislators have been known to state clearly that Ombudsmen must not do so to avoid unnecessary criticism to their government.

The Ombudsman of Quebec, Canada, Daniel Jacoby, a professor in law and a member of the Board of Directors of the International Ombudsman Institute, goes so far as to state that "if an Ombudsman's act of incorporation contains a prohibition against commenting publicly on an issue, but the country's constitution enshrines individual freedom of expression, an argument could be made that such prohibition is illegal since it contravenes a higher authority.

"Whatever the case may be, such provisions appear to me to be incompatible with the democratic objectives of modern states and the basic necessity that the public be adequately informed of errors and unfair treatment by elected officials and the civil service that reports to them."

The Ombudsman of Quebec states that the Ombudsman is justified in publicising specific cases to try and rectify inequities the government is refusing to correct without good reason. This is exactly what the Nationalist government has tried to do in not listening to what Mr Sammut has had to say.

This prominent lawyer then says that such situations justify an appeal by the Ombudsman to public opinion out of concern for the general public interest, even though publicity of this type usually upsets authorities.

In another comment which is very relevant to what happened in Malta, Daniel Jacoby says that: "At the start of my own career as an Ombudsman, I used to hold back from giving my opinion on subjects my office had not specifically looked into, but, with time, I came to realise that if I knew the subject well because of my general knowledge or had specifically studied the issue, there was no good reason why I should not contribute to informing and educating the public."

This is what Ombudsman Joe Sammut actually did when he commented on the compensation granted by the Nationalist government to Richard Cachia Caruana and its failure to grant similar compensation to Tarcisio Mifsud.

It is also interesting that in a survey conducted among users of the Ombudsman's services in Quebec, it was discovered that most felt that the Ombudsman should always intervene in the media when a citizen encounters difficulties with a public or parapublic organisation.

I conclude by quoting Martin Oosting, the Netherlands Ombudsman and President of the International Ombudsman Institute who states that "because the Ombudsman cannot impose formal sanctions, the mobilisations of shame can constitute a powerful weapon in his arsenal - although not, of course, in cultures, such as certain Asian cultures, where shame has to be avoided at all costs"!