Ombudsman's Office to be entrenched in Constitution

The House of Representatives yesterday started debating a Bill to entrench the Office of the Ombudsman in the Constitution. Opposition justice spokesman Anglu Farrugia said the opposition agreed with the amendment - which requires the backing of two-thirds of the House to be approved. He, however, called for a clarification of the wording, insisting that it should not be the role of the Ombudsman, as a constitutional appointment, to investigate the workings of other authorities or persons established by the constitution.

The proposed amendment reads: "There shall be a Commissioner for Administrative Investigations, to be called the Ombudsman, who shall have the function to investigate actions taken by or on behalf of the government, or by such other authority, body, or person as may be provided by law (including an authority, body or office established by this constitution) being actions taken in the exercise of their administrative functions."

The Bill was moved by Prime Minister Lawrence Gonzi who explained that the Bill entrenched the Office of the Ombudsman in the constitution and also raised the retirement age of the Attorney General and magistrates to 65 from the current 60.

He explained that at present magistrates were obliged to retire at 60 whereas judges could continue to serve up to 65.

Dr Gonzi said the situation for magistrates was anomalous because those who retired at 60 could not receive a pension before turning 61 but were still required to continue making social security contributions. With the retirement age gradually rising to 65 for everyone, that situation would become more difficult.

Furthermore, unless the situation was changed, it would become more difficult to find lawyers who accepted to serve as magistrates.

Dr Gonzi said judges were even suggesting that their own retirement age should be raised beyond 65. No decision was being taken on this issue, although it deserved to be carefully considered. Some countries had already agreed to raise the retirement age of judges, thus benefiting from the experience of these people for longer.

He said the decision to raise the retirement age of magistrates had been communicated to the opposition, which unfortunately never reacted to the letters sent to it from the Justice Ministry since February 2005. It would have been preferable had the opposition made its views known before the decision was made public, more so as this was not a political issue.

Turning to the amendment on the Ombudsman, Dr Gonzi recalled that the Ombudsman was first appointed almost 12 years ago as an officer of Parliament, autonomous of the government. There had been ups and downs, criticism and praise since then, as was right in a democracy. But the institution was clearly serving a useful purpose and the people had confidence in it. Now Parliament was expressing its confidence in the strongest possible terms by entrenching the Office of the Ombudsman in the constitution. As a result, in the future no changes could be made without a two-thirds majority in the House.

Dr Gonzi thanked the first Ombudsman, Joe Sammut and the current Ombudsman, Joseph Said Pullicino, for their service.

He regretted that in this case too, the Opposition had not voiced its opinion. This was even more serious because this amendment needed to be backed by a two-thirds majority to be approved.

Dr Gonzi noted however that Prof Said Pullicino had repeatedly welcomed the entrenchment of the institution. He also suggested that the proposed amendment should be preceded by a declaration in article two of the constitution, recognising the right of every individual to good administration. This therefore would be a declaration which could not be enforced in court but were a useful guide for a democratic society.

Dr Gonzi said he was ready to hear the opposition's reaction on this suggestion too and if it was favourable, the clause would be included as an amendment during the committee stage.

Anglu Farrugia, opposition spokesman for justice, said that at a meeting, Justice Minister Tonio Borg had originally proposed other amendments to the constitution.

However, with regards to the correspondence, the opposition had not been obliged to write back to the government. Its duty was to speak in Parliament.

Referring to the amendment involving the magistrates, Dr Farrugia said the opposition held there should be no difference between judges and magistrates. The opposition therefore backed this amendment. It was useful for the country to continue to benefit from the experience of the magistrates for a longer period, as long as they were fit enough to continue to serve.

Dr Farrugia said it was unfortunate that many long-serving lawyers were reluctant to become magistrates. As a result, many magistrates were therefore relatively young. A benefit of this amendment, therefore, would be that the magistrature would include more experienced persons.

The Labour MP said that in backing this amendment, the opposition was not linking it in any way with the pensions reform. Furthermore, magistrates who wished to retire earlier should be able to do so. At the same time, those members of the judiciary who wished to continue to serve after retirement should be given posts where they could still be of service.

Turning to the Ombudsman, Dr Farrugia recalled that it was the Labour Party that first proposed the creation of the Office of the Ombudsman.

He said the Labour Party never made personal attacks on the persons serving as the Ombudsman. This was in contrast to how Joe Sammut was attacked by the government following recommendations he made on appointments in the AFM.

The opposition, he said, agreed that the Ombudsman should be entrenched in the constitution, but it was important that recommendations which the Ombudsman made were heeded. This applied also to bodies such as Mepa.

After pointing out the opposition's objection to the Ombudsman also having the function to investigate other constitutional bodies, Dr Farrugia said the suggestion by Prof Said Pullicino to include a declaration on the right for good administration in article two of the constitution could be considered in committee. This, however, would be a declaration not enforceable in court.

Indeed, it may not make sense to include it at this stage because of the way the Bill was structured and one should consider how the other declarations of principle in the constitution could be beefed up.

Dr Farrugia was followed by Parliamentary Secretary Carm Mifsud Bonnici and José Herrera (MLP), who will be reported tomorrow. The debate is expected to continue on Monday.