Ombudsman clarifies Mepa statement on audit officer - stands by 2006 advice

The Parliamentary Ombudsman said today that officers such as the Mepa audit officer should, in the exercise of their functions, enjoy the same institutional protection and have the same powers and duties that the Parliamentary Ombudsman had.

The Ombudsman issued a statement in the light of controversy that arose after the audit officer issued statements in the wake of a court decision in the Mistra case and over development permission granted for a site on Qala Ridge.

Those comments drew sharp reactions from Mepa and, in the case of the former, also from the Prime Minister. The Church Environment Commission earlier today issued a statement in support of the audit officer. (see separate story).

The Ombudsman, former Chief Justice Joseph Said Pullicino in his statement referred to the dispute between Mepa and its Audit Officer over the Qala development permit, which is still pending before the Authority's Appeals Board.

He said it was not correct to state, as Mepa had stated, that the Ombudsman had in the past already warned the Auditor not to investigate planning cases that are sub judice.

"Under the present legal set-up the Audit Officer is an employee of Mepa. He does not have an institutional relationship with the Parliamentary Ombudsman who is therefore not empowered to directly influence, verify or control his actions or decisions," the Ombudsman said.

He said that it was also not precise to state that as things stood today the Office of the Ombudsman was "a higher institution" since it was autonomous. It was true, however, that a complainant who was not satisfied with the investigation carried out by the Audit Officer could resort to the Parliamentary Ombudsman to have his complaint investigated anew.

Judge Said Pullicino explained that the Ombudsman Act expressly provided that the Parliamentary Ombudsman "shall suspend the investigation if any interested person shall file a demand before any court or other tribunal on the subject matter of the investigation ..." . It was for this reason that in a similar situation that arose in 2006 regarding an investigation on the recycling plant in Marsascala, the Parliamentary Ombudsman had tendered advice to the Audit Officer that, in his opinion, he should be guided by the provisions of the Ombudsman Act and suspend his investigation and the publication of his findings.

"That advice, correctly adopted by the Auditor, was motivated not only because the publication of his report could potentially prejudice the outcome before the Appeals Board but also by the basic principle that every administrative body has the duty to respect judicial authorities and quasi judicial authorities, to avoid exerting undue influence to ensure that the final binding decision is taken serenely, fairly, free from external pressures and strictly according to laws and regulations," the Ombudsman said.

"That advice was valid in 2006 - it remains valid today".

The Ombudsman said the current incident further highlighted the prevailing unfortunate situation that the conduct of investigations by the Audit Officer, as well as by other independent authorities entrusted with administrative audit in the public administration, was not regulated by law.

"It should in my view be subject to the same procedures laid down in the Ombudsman Act. These officers should, in the exercise of their functions, enjoy the same institutional protection and have the same powers and duties that the Parliamentary Ombudsman has. It is for this reason that the Parliamentary Ombudsman has proposed to Government a measure of convergence between these authorities and his Office."

Judge Said Pullicino said he understood the Audit Officer's concern that, under current planning law, construction would still be allowed during the hearing of the appeal when the case contesting the relative permit was still sub judice.

"It is the opinion of the Parliamentary Ombudsman that this anomaly could seriously and irremediably prejudice the rights and interests of interested parties as well as of society in general. This anomaly should be addressed and rectified in the forthcoming MEPA reform," he said.

See also

http://www.timesofmalta.com/articles/view/20091112/local/mepa-in-sharp-rebuke-of-its-audit-officer