Issue link: https://maltatoday.uberflip.com/i/1513303
ALMOST everyone entering our courts needs some type of assis- tance. Sometimes I wonder what would happen if, upon their ar- rival, a court employee greeted them by declaring: "Welcome to our courts, where we treat you fairly, carry out justice speedily, and help you to resolve your dis- putes satisfactorily." This greeting would par- aphrase the mission of our courts and announce, literally from the door, a commitment to make that mission a reality. What would be the public's re- action to such a declaration? Incredulity? Suspicion? Relief? Gratitude? Respect? Based on what we know about public opinion of the justice system, we can imagine a combination of all of these responses. The twenty-first century Maltese public wants a legal system that, instead of merely moving cases along in a conveyor belt-like manner, enables people to participate in a dignified, meaningful and expeditious process that helps to address their problems. Re- cent innovations in court sys- tem design and management, such as problem-solving and user-friendly courts, are help- ing to achieve these goals. In response to public opinion and citizen requests, perhaps the time has come for our ju- diciary to develop an Ombuds- man programme to help court users effectively participate in the system and redress prob- lems when they occur. Such a programme could prove its rel- evance for courts seeking to be more responsive to the public. At the moment, under our Ombudsman legislative hi- erarchy, we have, apart from the Ombudsman himself as the overseeing parliamentary official, a Commissioner for Health, a Commissioner for Environment and Planning, and a Commissioner for Edu- cation. While the PN has called on parliament to set up a parlia- mentary committee for justice, the President of the Chamber of Advocates, Peter Fenech, re- ferring to the ever-increasing problems and stalemates in our court system, recently publicly mooted whether the time has come to legislate and establish an Ombudsman for the Judi- ciary with the authority to in- vestigate all complaints, from wherever they come, related to the administrative and judicial functions of our courts. As the position currently stands, the Ombudsman can- not inquire about or delve into the judiciary, including court decisions and the conduct of court proceedings, or where proceedings are pending in a court or in any tribunal con- stituted by, or under, any law. Taking this into account, the relationship between the om- budsman and the courts is an important constitutional is- sue. In its Recommendation 1615, way back in 2003, the Parliamentary Assembly of the Council of Europe stated that the Ombudsman´s competence regarding the courts should be "most strictly limited". Furthermore, as stated by the Venice Commission in its opinions, it is necessary to "ex- clude the power to intervene in individual cases" and "it is generally understood that the activity of the Ombudsman should not interfere with the judiciary." Thus, according to the Euro- pean standard, the Ombuds- man should not have any au- thority over the jurisprudence of the courts, including ad- ministrative and constitutional courts, which are scrutinising laws and administrative deci- sions. Still, that is not a hard- and-fast rule. Take the Finnish Ombuds- man, for example. The Finnish Ombudsman is traditionally entrusted with several instru- ments of comprehensive con- trol regarding the work of the courts. Still, even in Finland, the supervision of judges by the Ombudsman seems to be a rather delicate matter. The European standard that the courts should be excluded from the control exercised by the Ombudsman only applies to the main item of the judicial function: jurisprudence. Only the judges core activity is re- garded as the "judiciary", the independence of which should strictly be observed by the Om- budsman. By contrast, in several Euro- pean legal orders, judicial ac- tion may be examined by the Ombudsman if it is qualified as "administration of the ju- diciary" and can consequently be understood as "administra- tion" in a functional way. However, which specific ac- tivities are part of the admin- istration of justice in each case is a difficult issue of classifica- tion. It is not uniformly regu- lated in all legal orders. For the most part, it refers to the ad- ministrative conduct of court proceedings, thus to certain procedural acts (e.g., the set- ting down of a hearing date, the obtaining of expert opinions, executed copies and service of judgments), the execution of judgments as well as the initi- ation of disciplinary measures against judges. Due to the in- dependence of judges, judicial supervision only provides lim- ited possibilities for influenc- ing maladministration in this branch. The Ombudsman's role should be confined to ensur- ing the procedural efficiency and administrative propriety of the judicial system. So the Om- budsman can at least undertake general actions and measures to protect against unjust delay in court procedures or from the work of the court services. He may be expressly author- ised to observe specific defi- ciencies in the administration of justice, including delays in proceedings in general, admin- istrative misconduct by judges or judicial officers, delayed ser- vice of documents and delays in executing judgments. He may even be authorised to request information about proceedings from the Chief Justice, request periodical reports, register de- lays or disciplinary procedures, and make recommendations about the functioning of the court system. A court system's missteps, even minor ones, have signif- icant consequences for the individuals involved and the public's perception of the judi- cial system. Court users want someone to help them find out where the problem lies and get the case on track. Yes, there is a dire need for an Office of the Judiciary Om- budsman with four unique characteristics: neutrality, con- fidentiality, independence and sufficient authority to accom- plish its purpose. The case for a judiciary ombudsman 4 maltatoday | SUNDAY • 17 DECEMBER 2023 OPINION OPINION Mark Said is a veteran lawyer Mark Said