On August 1, two commissioners for administrative investigations were appointed within the Office of the Ombudsman.
This has been made possible through the entry into force of the Ombudsman (Amendment) Act, 2010 – Act No. XVII of 2010.
These amendments have been brought into force by the Prime Minister except for article 4 of the 2010 amendments.
This latter article will come into force on November 1, 2013 and deals with the Commissioner for Education. The Prime Minister has also published in The Malta Government Gazette the Commissioners for Administrative Investigations (Functions) Rules, 2012 – Legal Notice 250 of 2012.
These rules establish common rules to be applied by all commissioners for administrative investigations and then establish particular rules for each commissioner.
These rules also refer to three commissioners in particular: the Commissioner for Education; the Commissioner for Environment and Planning; and the Commissioner for Health. The rules do not exclude the appointment of other commissioners in the future.
Appointing commissioners for administrative investigations within the Office of the Ombudsman is a welcome initiative since it ensures that all commissioners, irrespective of which sector they are covering, will apply common rules, standards and practices.
This will contribute to strengthening the Office of the Ombudsman as all commissioners will be observing the same rules of procedure rather than inventing their own, not to say departing from the standards adopted by the Ombudsman or by the standards given by Parliament to the Ombudsman in terms of the Ombudsman Act.
Moreover, all commissioners will be housed in one building rather than separate locations distant from each other.
Sometimes, members of the general public do not know whom to address their complaint to. This public friendly one-stop-shop measure will make life easier for everybody.
Another advantage of this reform is that all commissioners are answerable to the House of Representatives and not to the government. Like the Ombudsmen, the Commissioners are officers of Parliament. Their annual report is published in the Ombudsman’s annual report.
The 2010 amendments are laudable. But they do not go far enough. Going through the annual reports of the Ombudsman, one notes that he has called upon both sides of the House of Representatives to empower his office to deal with human rights complaints.
In addition, he has also suggested a remedy to be afforded to those complainants whose positive recommendations by the Ombudsman are not taken on board by the public administration. Although it must be made clear that few are those Ombudsman recommendations which are not acted upon by the public administration, still those few complaints should not be left in abeyance.
When such a stalemate occurs, it should be the Ombudsman’s boss – the House of Representatives – which should intervene, discuss the complaint, the Ombudsman’s report and the public administration’s reasons for not implementing the Ombudsman’s recommendations.
I am sure that when the public administration does not implement an Ombudsman recommendation it does not do so capriciously: there surely must be valid reasons, probably in the form of legal obstacles, which detract the public administration from giving full effect to the Ombudsman’s recommendations.
Moreover, once we now have one Ombudsman, a University Ombudsman and two Commissioners (these will be increased to three in the near future when the office of University Ombudsman will cease to exist and is replaced by a Commissioner for Education), it has become more impending that the House of Representatives deals with the unimplemented reports of all four Ombudsmen/commissioners.
Therefore, the problem will intensify rather than diminish in importance.
The Ombudsman is the public’s defender against certain objectionable decisions taken by the public administration. His mediatory function decreases court cases and at the same time gives the public a timely and cost effective remedy.
Strengthening the Ombudsman’s office is therefore a must to ensure that the public administration delivers to the public the right to a good administration. This watchdog function over the public administration should be developed further as it is, after all, the House of Representatives’ function to oversee the functioning of the public administration.
Through the Ombudsman and the Commissioners, the House of Representatives is empowered to carry out better this watchdog function.
I congratulate the two new commissioners – David Pace and Charles Messina – and wish them well in their new duties.
Prof. Aquilina is dean of the Faculty of Laws at the University of Malta.