The Ombudsman Act was enacted way back in 1995. Nearly 20 years have elapsed since then. In 2007, the Office of the Ombudsman was recognised by the Constitution.

The 1995 enactment was substantially amended in 2010 to provide for the establishment of commissioners for administrative investigations within the Office of the Ombudsman. That notwithstanding, it cannot be stated that any thorough comprehensive review of the Ombudsman Act and of the Ombudsman’s functions has been made since its enactment.

The incumbent, Chief Justice Emeritus Joseph Said Pullicino, has recently been tasked by Louis Grech, Deputy Prime Minister and Minister for European Affairs and Implementation of the Electoral Manifesto, to carry out a review of the Office of the Ombudsman, its tasks and the ways and means through which the office can be strengthened.

The fruit of such a review process is entitled ‘On the strengthening of the Ombudsman institution: a proposal by the Office of the Parliamentary Ombudsman’. The report, dated January 2014 and just released, is quite an extensive review consisting in 112 pages of text, nine appendices and 11 proposals in all.

I have had the opportunity to comment on this report prior to its publication and I must admit that I am impressed by the report, which I consider to be well written and coherently argued. The proposals contained are framed such as to cater for current needs aimed at updating ombudsman legislation to today’s realities.

The report recommends that the right to a good public administration be enshrined as a fundamental right in the Constitution. This implies that the State continues to be liable for its actions and that an individual has a right to seek redress for damages suffered at the hands of the State.

The constitutional status of the Ombudsman, the report proposes, should also be strengthened to ensure that the Constitution regulates, like it does in the case of the Auditor General, the Ombudsman’s method of appointment, term of office, security of tenure, funding of the office and the conditions of service.

Additional specialisation of the Ombudsman’s office is further advocated by the report. The first step favouring specialisation took place in 2010 when the Ombudsman Act was amended to allow for the establishment of a Commissioner for Health, a Commissioner for the Environment and Planning and a Commissioner for Education.

Now it is being suggested that this successful process be extended to other areas such as for persons deprived of their liberty, local councils and consumer rights.

Another suggestion is that ombudsman-like institutions which already exist in Malta should be identified with a view to forming part – without losing their autonomy – of the Office of the Ombudsman. This would ensure that common standards are adopted by all ombudsman institutions in Malta.

I would consider the Commissioner for Children and the Police Board as being two potential candidates to carry out their present day functions from within the Office of the Ombudsman unless and until they are converged with this office and commissioners for administrative investigation are appointed for children and the police.

The report proposes that further use of the Ombudsman institution should be made both by the Prime Minister and the Committees of the House.

There is a great advantage in requesting the Ombudsman to carry out an investigation because this office is a parliamentary office which is independent from the government and enjoys the trust of the public at large. We all know that the Office of the Ombudsman has the ingredient of neutrality that detaches it completely from partisan political considerations.

Improvement of the Ombudsman institution is a must

The report also discusses how the Ombudsman’s remit can be extended to provide a better service to the public. This can be done by extending his functions to protect citizens receiving an essential service from a private stakeholder previously administered by the government as is the case with the mail and telephony.

The Ombudsman could also be tasked with the role of investigating complaints on alleged violations of fundamental human rights so that the amount of human rights cases filed in court would be decreased.

Other areas referred to in the report where the Ombudsman can provide specialisation are financial services, the protection of animals and journalistic ethics.

While the Ombudsman’s recommendations should continue to be non-binding, there still should be a mechanism in place to address recommendations which remain unimplemented. As the Ombudsman is a parliamentary officer, it should be his immediate superior – the House of Representatives – that should decide whether the unimplemented recommendations of the Ombudsman should be enforced or not.

It must be nevertheless admitted that there may be situations where the public administration is not at fault in implementing Ombudsman recommendations such as when a particular law mandates a specific action which might not be conducive to good administration. In such cases, it is Parliament which can successfully redress that breach of a citizen’s right to good administration.

Moreover, there might be cases where there is disagreement between the Ombudsman and the public administration as to the interpretation of laws and regulations. In such a case, Parliament is not the most competent forum to rule on this matter. But a court or tribunal, such as the Administrative Review Tribunal, would surely be equipped to resolve such disputes. Thus, such a judicial remedy should be made available in the interest of citizens’ rights.

Insofar as the relationship between the courts and the Ombudsman is concerned, the report considers three important measures.

First, it refers to the possibility of the Ombudsman’s final opinion constituting prima facie evidence in a court or tribunal.

Second, when a complaint is filed with the Ombudsman it should interrupt the extinctive prescription of the action so as not to adversely affect the complainant.

Third, a complainant should be given the possibility to request compensation in court in those instances where the Ombudsman finds in favour of the complainant and payment should be made to the complainant as an adequate means of redress for the injustice suffered.

Overall, the report has managed well to identify those areas which can be strengthened insofar as the Ombudsman institution is concerned.

Indeed, improvement of the Ombudsman institution is a must bearing in mind that nearly 20 years have passed since the enactment of the Ombudsman Act and the developments which have taken place in Ombudsman legislationat European, Mediterranean and inter-national level.

What is surely the case is that the Ombudsman institution is here to stay and that the enhancements proposed in this report will make the Ombudsman institution more relevant, stronger, effective and proactive in granting the citizen a right to good administration.

Kevin Aquilina is dean of the Faculty of Laws at the University of Malta.