Going back to basics | Joseph Said Pullicino

The first time I ever heard the word ‘Ombudsman’ was when the office was first instituted in 1995. I imagine I wasn’t the only one to be completely flummoxed by the word at the time. How did an obscure 1950s Swedish term for ‘legal representative’ find its way into every legislative model in the Western world? That, I suppose, remains one of the great mysteries of modern philology.

In any case: today, after 20 years of activity, the office of the Ombudsman has infiltrated the national consciousness at every level. It is no longer an outlandish novelty that might be uttered by the Swedish Chef in The Muppet Show: it’s a household name with which practically everyone is now familiar. 

And yet, its precise meaning remains elusive. On paper, the Ombudsman is defined as “an official appointed to investigate individuals’ complaints against a company or organisation, especially a public authority”. That remains the office’s core function, and among the many institutions to be scrutinised by the Ombudsman you will find the Armed Forces – where complaints have mostly involved issues such as promotions, back-pay, etc. – the Civil Service, the diplomatic corps, etc.

But while the Ombudsman’s role as an investigator is broadly accepted, the results of such investigations can (and often are) disregarded. In February this year, the present Ombudsman – Dr Joseph Said Pullicino, who now sits across a table from me in his Valletta office – filed an application to the Civil Court, complaining that his office was being hindered from investigating complaints filed by army officers.

The Courts ruled in the Ombudsman’s favour, but the government has since appealed against the decision. Without entering the merits of the case itself, this development – along with other similar controversies to have surfaced over the years – has underscored a question mark surrounding this particular office, and its Constitutional rights and duties.

It is as though Malta’s legislation conforms to all the requirements for accountability, transparency and justice… but when the structures try to carry out their functions, they often seem to hit a snag. Is it a case that the Ombudsman office is there merely to give the impression of full accountability… without actually enjoying the powers to enforce its mandate?

This takes us back to the original question. What is the Ombudsman, anyway? What does the word mean?

The present incumbent simplifies the above definition as “an auditor of good governance”.

“As you know, the office of the Ombudsman is embedded within Parliament. The concept of ‘good governance auditing’ arises directly from this fact: Parliament is – or is meant to be – a watchdog over the Executive. Just as the National Audit Office assesses the executive on a fiscal level, the Ombudsman should likewise be in a position to carry out ‘audits’ on the government’s management of its affairs. For this to work in practice, however, the function of ‘watchdog’ has to be real…”

This brings us to the first hurdle. Before even getting to the Ombudsman’s office, we have to first examine the Constitutional framework governing the separation of powers in Malta. Is Parliament, in its present form, able to carry out the role of scrutiniser of government? How can that even be possible, when the Cabinet of Ministers – i.e., executive arm of government – is composed uniquely of MPs? 

“Your question goes back to the fundamentals of the Constitution. In Malta, for reasons of history, our system is modelled on the traditional Westminster pattern – it was essentially imposed on us from the top downwards. In this day and age, this seems to be anachronistic. Today, it is accepted that power comes from the people through Parliament; and that the Executive is answerable to Parliament….”

The British system is very different in this respect. Constitutionally (though we cannot talk of a written Constitution) the executive arm of the British State is answerable to the reigning monarch. The two concepts are in fact almost incompatible.

“In our system, the Cabinet and executive are not there to serve the monarchy. They are there to serve the people, and have to respond to the elected representatives of the people.”

The result of this situation, he argues, is that we have been left with “a very strong executive, and a weak parliament.”

“This is my personal opinion, but I think it can be borne out by studies. There is no clear distinction between Parliament and the Executive. How, then, can the watchdog role be fulfilled? You cannot act as a watchdog over yourself…”

Suddenly, a new difficulty swims into view. Any change to the above model can only be achieved through Constitutional amendments. Leaving aside the political problems that may arise (there seems to be consensus on Constitutional reform in principle, if not in the details)… for the Ombudsman’s role to be strengthened, the entire Constitution must first be reconceptualised to make clearer distinctions between the various arms of the state.

In practical terms, that would entail rewriting the Constitution from scratch.

“There are two ways of approaching the issue. We can either make amendments here and there, setting right individual problems as they arise; or else, we could have a real rethink and rewrite of the Constitution. On the basis that we are discussing a ‘new Constitution’, it seems we are heading for the second option. Either way, the issue has to be considered carefully. There might be sufficient reason for the Constitution to be fundamentally rethought; and, while keeping what was positive about the original – for it has undoubtedly worked pretty well over the last 50 years, despite occasional loopholes – we may want to change conceptually. I think that here, even the University and academics in general should contribute to the discussion. We never seem to discuss things at any real depth…”

Even if rewritten from scratch, a new constitution is unlikely to differ too radically from the present one in terms of the relationship between Parliament and Government. 

“You can’t have a situation, in our Constitutional set-up, where the executive is completely distinct from parliament. There must be, at this moment in time, an overlap between the two structures. We can discuss appointing Cabinet members from outside parliament, but I don’t think there should be a complete divide. After all, the Executive also has a Constitutional duty to govern; it should be fully operative, and given the space it needs to carry out this function. Ultimately, however, the seat of power should be Parliament.”

Parliament decides laws, and the executive is there to implement those laws… or so it goes on paper.

“I think there are ways to strengthen Parliament so that it truly does become the seat of power… so that power is not concentrated solely in the hands of the Executive. Ideally, the Executive should wield power as the ‘manager’, so to speak, of what Parliament decides…”

Where does the Ombudsman fit in all this? Said Pullicino views his own office as analogous to the National Audit Office: only concentrating on governance, rather than fiscal matters. 

“The NAO and the Ombudsman are two of the mechanisms that exist to scrutinise the work of government. But there are others. A number of other Commissions, in the Constitution as it is today, provide for this sort of support to Parliament. But this has to be spelt out better.”

The issue of whether Cabinet ministers should be chosen exclusively from parliament has, of course, been debated for some time. But Said Pullicino points out other elements of this apparent overlap. “Should there be MPs chairing boards within the executive? If so, what sort of watchdog role can parliament really fulfil? These are concepts that have never really been properly thought through. It is about time one starts thinking about them.”

On a separate level, there may be room in the new Constitution for concepts which used to be present, but which have since been diluted or phased out altogether.

As an example, the Ombudsman points to the way the Civil Service is organised. “Up to perhaps 30, 40 years ago, the concept of the Civil Service was to serve the government regardless of who was in power. This was one of the good legacies left behind by the British era: a strong civil service to operate independently of whoever occupied power. That, I think, has been weakened quite a lot…”

The issue is not, however, straightforward. “Governments have policies to implement; they want to surround themselves with people they can trust. But up to some time ago, people in top civil service positions could be trusted to implement policies independently of their own convictions. We seem to be moving away from this model, and towards a more American style… whereby the incoming administration moves in with all its own trusted people. I’m not saying one system is necessarily better or worse than the other; but we haven’t really ever discussed these things.”

In a sense, this ‘evolution’ of the civil service was similar to the evolution of the Constitution: only tinkered with here and there, without any attempt to effect a root-and-branch reform.

Said Pullicino extends the analogy to the issue of transparency and accountability. “If I may generalise slightly: the broader mentality, until today at least, is that the government is accountable to the people, yes… but only once every five years. There is no real audit of government’s actions throughout its tenure of office. Our approach seems to be: ‘the executive has the duty to govern; so let it govern. Then we’ll see when the time comes’. I don’t think this is the way it should be. I believe that Parliament should be there to scrutinise and audit – within established parameters and limits – what the government does at all times.”

One way in which the Ombudsman’s office recently tried to emphasise this point was the publication of a report entitled ‘The State’s Duty to Inform’.

“The issue is: when should the State inform? Should there be an obligation on the State to divulge information as a rule… or is it something that should be left to the government’s discretion?”

In Malta’s Constitutional set-up, the answer remains unclear. “I think we have to go back to basics. Why do we have a Constitution? What is it there for? How should its purpose be reflected in the structures of the State? That is a discussion that needs to take place. The essential structures of an independent judiciary, an effective Parliament… they may be sound as they are, but we still need to go over the Constitution to see how to better organise the relationship between Parliament and the Executive. There are individual areas that need to be looked into: Broadcasting, for instance. I would say these institutions are not fundamentally wrong in their present form; they are fundamentally positive. But I strongly believe the philosophy underpinning the constitution has to change.”

How would Dr Said Pullicino rewrite the constitution, if given a free hand?

“Some years ago my office made two proposals, which have since been taken on board for discussion. First, we believe the right to good public administration should be a fundamental right enshrined in the Constitution. This would give the citizen the right to invoke the Constitution in order to hold the executive to account. The second is that, as a minimum, the Office of the Ombudsman should have the same Constitutional guarantees as the Auditor General has, such as the independence of its various functions.”

This brings us back to the issue simmering in the background. The Ombudsman’s recommendations regarding the AFM have been rejected by the government, which also challenged the court’s decision. Doesn’t this mean that the Ombudsman is effectively being undermined? 

“I wouldn’t say so. To make things clear: at present, we have full autonomy under the Ombudsman Act. I think Malta has one of the best Ombudsman legislations… in Europe definitely, but also in the rest of the world. Maltese law gives the Ombudsman extensive power to investigate, as well as the right to investigate on his own initiative. The Ombudsman has the status of a judge; he is directly answerable to Parliament… you won’t find many countries in the world with a similar set-up. There is nothing like it in the UK, for example. We have a very good law, which is a credit to the Parliament which unanimously approved it. In my experience, I can’t say that the office was undermined in any way…”

Yet people do make that claim… not least, the Opposition. 

“There have been points of difference, yes. But raising issues with the government concerning, for instance, jurisdiction over the Armed Forces… that doesn’t mean my office is undermined. You could describe the situation as an attempt to weaken the powers of the Ombudsman; but that is an issue to be decided by the courts. You could add, perhaps, that the government should not have appealed; but again, that doesn’t add up to undermining…

OK, perhaps the word itself may be contested. There remains the question of whether the Ombudsman’s recommendations to government, on any issue, are actually binding. It is all well and good to have a strong Ombudsman’s office with the power to investigate; but if the conclusions of its investigations can be ignored with impunity… how effectively can the Ombudsman function in practice?

“Personally, and I have said this before, I do not believe that the Ombudsman’s recommendations should be binding. If they are binding, then this office will become a court of law. As a court of law, it would need different rules and a different apparatus. Having said this, there may be other, more appropriate ways to strengthen the office. There could be a clearer method of how the Ombudsman’s recommendations are assessed by Parliament; through a parliamentary committee, for example. On paper, this already exists. If an issue examined by the Ombudsman is considered important enough – in that it affects many people – it should be discussed in parliament, and a political decision taken. But in reality it has never happened, because there isn’t any real control by parliament…”   

And yet, other Constitutional bodies which serve similar functions do have wider executive powers. The Broadcasting Authority, for instance – of which Dr Said Pullicino was once chairman – scrutinises and ‘investigates’ the broadcasting sector, and its decisions are certainly binding.

“Up to a point, the BA has a quasi-judicial function. But I don’t think this should be extended to the Ombudsman, for a number of reasons. This office has the right – and it is a very good right – to make value judgments about legislations. We can say, ‘this law is just, this law is unjust’. Those are however subjective viewpoints. The Ombudsman’s opinion carries weight, and as such should be given due consideration. But it doesn’t follow that his opinion should become law.”