Issue link: https://maltatoday.uberflip.com/i/1513813
Mark Said is a veteran lawyer 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 speedi- ly, and help you to resolve your disputes satisfactorily." This greeting would paraphrase the mission of our courts and an- nounce, literally from the door, a commitment to make that mis- sion a reality. What would be the public's reaction to such a dec- laration? 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 relevance 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 forthcoming, related to the administrative and judi- cial 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 for- mer opinions, it is necessary to "exclude the power to inter- vene 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 regarded as the "judiciary", the independence of which should strictly be observed by the Ombudsman. By contrast, in several European legal or- ders, judicial action may be examined by the Ombudsman if it is qualified as "administra- tion of the judiciary" and can consequently be understood as "administration" in a function- al 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 ensuring 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 authorised to observe specific deficiencies in the administration of justice, including delays in proceedings in general, administrative mis- conduct by judges or judicial officers, delayed service of doc- uments and delays in executing judgments. He may even be authorised to request informa- tion about proceedings from the Chief Justice, request peri- odical reports, register delays 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. maltatoday | SUNDAY • 31 DECEMBER 2023 4 OPINION The case for a judiciary ombudsman Mark Said