Issue link: https://maltatoday.uberflip.com/i/361046
12 THE institutional standoff between Parliamentary Ombudsman Joseph Said Pullicino and Home Affairs Minister Manuel Mallia on army promotions is to be treated at a head to head meeting this week. It is a month since Minister Mal- lia announced he had requested the meeting with Said Pullicino. It has now been scheduled. I met Chief Justice Emeritus Said Pullicino amid a cacophony of con- struction noise related to the expan- sion of his office to an adjacent block in St Paul Street in Valletta. Minister Mallia contends that the ombudsman has no jurisdiction over the army. He also contends that this opinion was expressed by the office of the ombudsman in 2003 – two years before Said Pullicino's appointment, when an investigating officer refused to investigate a complaint lodged by an army officer over promotions be- fore exhausting all other channels. The ombudsman, who disagrees with the interpretation given in 2003, is adamant in affirming his political independence, arguing that he is simply reiterating what he told the previous government in 2009 when he was faced by complaints from army officers with regard to promo- tions and he insisted on the ombuds- man's right to investigate complaints by army officers. "It is simply not true that I treated this issue differently under a differ- ent administration… This issue was tackled and resolved in 2009," Said Pullicino told me. He explained that under the pre- vious administration, this matter had been the subject of discussion over several months between Presi- dent George Abela, the Office of the Prime Minister, the Office of the At- torney General, and the army. Ac- cording to this agreement, an AFM Officer could either lodge a com- plaint with the ombudsman or refer the complaint to the President of Malta, through the Commander of the Armed Forces and the minister. "According to this agreement members of the army could choose either to lodge their complaint with the President or the Ombudsman… in a way that if the complaint went to the President officers lost their right to lodge a complaint with the Om- budsman and vice versa" According to Said Pullicino this written agreement was implemented by both administrations to the ex- tent that one of the recommenda- tions made in an investigation by the ombudsman conducted before the change in government was imple- mented by the present administra- tion. "Therefore I strongly deny that we have acted with prejudice towards the new government… What irked me most about this case is the in- sinuation that this office acted differ- ently under the previous administra- tion…" Throughout his tenure Said Pullici- no always insisted that citizens should not seek recourse to the ombudsman while resorting to other avenues such as the courts. One case in point was his decision to stop the publication of a report by former MEPA auditor Joe Falzon on the approval of a permit for the Sant' Antnin recycling plant. Pullicino insists that he remains of the same opinion, which stems from the law regulating his office and his approach to the army investigation is consistent with this approach. "According to the Act regulating the army the only avenue for army personnel is to lodge complaints with the President and with the com- mander. This means that the army's decision will be reviewed first by the commander, then by the minister and finally by the President. Moreover the President can only act according to the advice given by the cabinet… For me this system did not offer an adequate remedy for it did not make sense for me to investigate cases after a decision has already been taken by the President. How can I say that the President of Malta is wrong? That is why I had raised this issue with the previous administration and a solu- tion was found after months of nego- tiations." How does the minister's refusal to hand over documentation related to the case to the office of the ombuds- man reflect on the state of govern- ance in the country? Said Pullicino limits himself to the legal aspects of the case. "This is a question of interpreta- tion…There is a conflicting interpre- tation of the law between us and the administration. I am not saying that an administration cannot change its interpretation but as long as the law remains the same we have to work within it." According to the ombudsman this conflict can only be resolved by the courts, which will have to decide which interpretation of the law is correct. "My only problem is that this may prolong the case to the detriment of the army officials who lodged the complaint… I have to safeguard their interests and that is why I am meet- ing the minister next week… to try to find a way out of this impasse which would not further delay the investi- gation." This was not the first time Om- budsman Said Pullicino was accused of overstepping his jurisdiction. In December 2012 Said Pullicino, in a letter called on the President and the Chief Justice to relieve judge and Maltese Olympic Committee presi- dent Lino Farrugia Sacco of his judi- cial duties. The latter protested that Said Pullicino had overstepped his jurisdiction. Said Pullicino insists that this case is of a different nature than that over army procedures, as while on Farru- gia Sacco he was expressing an opin- ion on the way the administration of justice is being perceived by citizens, the army case is related to his institu- tional duty to investigate complaints by citizens. "In the case of Farrugia Sacco, I was not conducting any investigation. I simply pointed to the Commission for the Administration of Justice that we were confronted by a situation which impacted negatively on citi- zens' perception of justice." Said Pullicino remains of the opin- ion that although the law precludes him from commenting on the ac- tions taken by the judiciary he is free to express an opinion on how the jus- tice system impacts the citizen… But Said Pullicino accepted the verdict of the Commission for the Adminis- tration of Justice which decreed that he should have held back from com- menting on the case. "I am not a judge and I submit to the decision and I have stopped com- menting on the case…but if in the fu- ture I have the chance I would like to take the issue further." Said Pullicino has worked under a Nationalist and a Labour administra- tion. He does not see any great differ- ences noting that "governments are always governments… they exercise power" For the ombudsman the funda- mental question remains that of how to exercise this power. But according to the ombudsman it is too early to make any comparisons. "The previous administration had been in power for 25 years while this one has just started. This means that it is still full of enthusiasm to enact changes in the shortest time possi- ble. A new administration may lack the background about administrative systems and philosophies may dif- fer…but essentially both administra- tions share the motivation of doing what's best for citizens… I do not see any big differences." Complaints referred to the om- budsman declined drastically after the general election, the 'Ombusd- splan' presented by Said Pullicino revealed. The number of new cases addressed by the parliamentary ombudsman declined by 23% – from 171 between April and August in 2012 to 132 in the same period in 2013. "It is an established statistical trend that cases referred to the ombuds- man decrease both before elections and immediately after elections. This is because before elections the administration in power tries to ad- dress complaints in the shortest time possible. After elections people have the expectation that past injustices are addressed by the new administra- tion and therefore people tend to go directly to the source of power. Both trends are understandable." But the trend has already been reversed and the number of cases brought to the ombudsman between January and August is similar to that of last year. He also notes an increase in the number of non-written verbal complaints. Another factor limiting the number of complaints is the appointment of committees in the various ministries to address complaints by citizens. While favouring any mechanisms to address legitimate complaints Said Pullicino warns that these internal mechanisms are not ideal for ad- dressing perceived injustices com- mitted under the previous admin- istration due to the perception that they are assessing the action of a po- litical adversary. "When you are addressing injus- tices made under your own admin- istration there is no problem with having such mechanisms but this is not the same when addressing past injustices." Said Pullicino notes that this dan- ger was recognised by the Sant ad- ministration in 1996 when the newly elected government had the same pressures to address injustices. "The Prime Minister of that time insisted that such cases should go to the ombudsman... the reason is sim- ple, to correct the mistakes of a previ- ous administration one should not be perceived as its political adversary... Moreover one can end up creating a new injustice in an attempt to re- dress a past injustice... Not even this office is immune from this but our office is independent and account- able to parliament… That is why I am hurt whenever I am accused of politi- cal bias. In 20 years as a judge I have never been accused of political bias." The office of the ombudsman has grown over the past years with the appointment of commissioners re- sponsible for health, planning and education. "This specialisation is very impor- tant. I am sure that the commission- er for health is more capable than I to investigate a complaint related to health. The same applies to planning and education..." In planning, Mepa's internal audi- tor, Joe Falzon, had become a house- hold name, mainly due to his frank- ness and outspoken views. According to Said Pullicino it is the character of the person appointed to such posts which gives an imprint to the role. He notes that the transition from the former MEPA auditor to the new commissioner, David Pace, was very smooth, noting that cases Interview By James Debono maltatoday, SUNDAY, 10 AUGUST 2014 The state of good ON POLITICAL BIAS I am hurt whenever I am accused of political bias. In 20 years as a judge I have never been accused of political bias GOVERNMENTS... Governments are always governments… they exercise power