Rationalising extant ombudsmen

The rationalisation process of independent reviewing institutions should not simply address the staffing requirements of the sectoral ombudsmen. Important as that might be, it should go beyond that to address other aspects including their appointment and removal procedure.

The best solution seems to be to consolidate the Audit Officer, the University ombudsman and the Commissioner for Children within the office of the parliamentary Ombudsman. In this way, to take the case of the Audit Officer, the latter would not only make use of the case officers and staff of the parliamentary Ombudsman but, being part of the parliamentary Ombudsman's office, would also act under the guidance of the parliamentary Ombudsman. The Ombudsman would be responsible to Parliament for the workings of the Audit Officer as well and would also ensure that the Audit Officer has the necessary staff to fulfil his duties and that the Audit Officer and the staff assigned to him would be bound by the same code of ethics applicable to the parliamentary Ombudsman and his staff.

Unfortunately, there has been at least one reported case where the Audit Officer disagreed at first with the parliamentary Ombudsman concerning the disclosure of the Audit Officer's reports. Insofar as procedure goes, this should be uniform and standard for the parliamentary Ombudsman and sectoral ombudsmen and in the case of a lacuna in their respective law, sectoral ombudsmen should follow Parliament's will as enshrined in the Ombudsman Act. Even the annual report of the Audit Officer would form part and parcel of the parliamentary Ombudsman's annual report and not part of Mepa's annual report.

The above ought to apply to the Commissioner for Children and to the University ombudsman even though in the latter case the University ombudsman's report is published in the parliamentary Ombudsman's annual report and not in the University of Malta's report. Moreover, there would be more standardisation in the procedures followed by all the four ombudsmen in their investigations, they would be working from the same office ensuring that the citizen would be afforded a one-stop shop and there would be no overlap in functions between them all.

If the Audit Officer were part of the parliamentary Ombudsman's office and appointed by the latter, then it would be reasonable to amend the Development Planning Act so that Mepa would not be involved in the appointment procedure of the Audit Officer. Nor would Mepa have to provide the Audit Officer with his staff.

Mepa should not have a say neither in the selection process of the Audit Officer nor in his staff. Indeed, there should be one simple straight forward procedure for the appointment of all sectoral ombudsmen: they should be appointed by the parliamentary Ombudsman. After all, the latter enjoys the confidence of both political parties represented in Parliament - he is appointed by at least a two-thirds majority vote of the House of Representatives - and, hence, there should be no valid objection to having him appoint the various sectoral ombudsmen and receiving them in his fold. This measure would also ensure the timeliness of sectoral ombudsmen's appointment.

There could indeed be three sectoral ombudsmen: one responsible for development planning and environmental complaints; another for education (including the University) complaints; and yet another for complaints concerning children and the implementation of the United Nations' Convention on the Rights of the Child. Such administrative arrangement should be flexible enough to permit their updating to change over time. The functions of the parliamentary Ombudsman, in accordance with the latest developments in this sector, should be widened to enable him to investigate human rights complaints as well.

When these sectoral ombudsmen were created, it was not possible for Parliament to foresee the difficulties which would arise when these ombudsmen began to function. Now, with the benefit of hindsight, sectoral ombudsmen have been tried and tested and so it is possible to appraise the institutional defects which cropped up during the last years and, on the basis of past experience, corrective measures can be offered in order to ensure that the citizen gets a better deal from the public administration through the intervention of the parliamentary Ombudsman.

Hopefully, now that a general election is approaching, it would be superb if all the political parties, when drawing up their respective political manifestos, give it a thought as to how to reform the offices of ombudsmen in this country for the benefit of Maltese citizens.

To return to the Opposition Leader's distinction between independent reviewing institutions and internal complaints handling mechanisms (mentioned in the first part of this article), what is stated in this article does not apply to the latter but only to the former.

I do not consider the Audit Officer to qualify as an internal complaints handling officer as he is not part of Mepa, he is not a Mepa employee, and he is not dependent on Mepa. Article 17C (7) of the Development Planning Act clearly states that the Audit Officer "acts in his individual judgment and shall not be subject to the direction of any other person or authority".

Nor am I referring in this article to liaison officers with the office of the parliamentary Ombudsman who are in the employ of departments and government entities. These should not be rationalised as above stated but should continue to carry out their respective internal audit functions irrespective of any ombudsmen rationalisation that might hopefully take place in the near future. As concluded in a recent editorial in this newspaper, "the independence and the integrity of the Ombudsman must be preserved at all costs". Hence, it is he who should be the final arbiter insofar as the responsibility, management and efficiency for sector ombudsmen is concerned.

Dr Aquilina is senior lecturer at the Department of Public Law of the University of Malta.

Concluded: The first part was published yesterday.