Issue link: https://maltatoday.uberflip.com/i/624751
14 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 re- mains elusive. On paper, the Om- budsman is defined as "an official appointed to investigate individu- als' complaints against a company or organisation, especially a pub- lic authority". That remains the office's core function, and among the many institutions to be scruti- nised 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 ac- cepted, the results of such inves- tigations can (and often are) disre- garded. In February this year, the present Ombudsman – Dr Joseph Said Pullicino, who now sits across a table from me in his Valletta of- fice – 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 Om- budsman's favour, but the govern- ment has since appealed against the decision. Without entering the merits of the case itself, this devel- opment – along with other simi- lar controversies to have surfaced over the years – has underscored a question mark surrounding this particular office, and its Constitu- tional rights and duties. It is as though Malta's legislation conforms to all the requirements for accountability, transparency and justice… but when the struc- tures try to carry out their func- tions, they often seem to hit a snag. Is it a case that the Ombuds- man office is there merely to give the impression of full accountabil- ity… without actually enjoying the powers to enforce its mandate? This takes us back to the origi- nal question. What is the Om- budsman, anyway? What does the word mean? The present incumbent simpli- fies the above definition as "an au- ditor of good governance". "As you know, the office of the Ombudsman is embedded within Parliament. The concept of 'good governance auditing' arises di- rectly from this fact: Parliament is – or is meant to be – a watch- dog 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 hur- dle. Before even getting to the Ombudsman's office, we have to first examine the Constitutional framework governing the separa- tion of powers in Malta. Is Parlia- ment, 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 Constitu- tion. In Malta, for reasons of his- tory, our system is modelled on the traditional Westminster pat- tern – it was essentially imposed on us from the top downwards. In this day and age, this seems to be anachronistic. Today, it is ac- cepted that power comes from the people through Parliament; and that the Executive is answerable to Parliament…." The British system is very differ- ent in this respect. Constitution- ally (though we cannot talk of a written Constitution) the execu- tive arm of the British State is an- swerable to the reigning monarch. The two concepts are in fact al- most 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 re- spond to the elected representa- tives 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 distinc- tion 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 amend- ments. Leaving aside the political problems that may arise (there seems to be consensus on Consti- tutional reform in principle, if not in the details)… for the Ombuds- man'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 approach- ing the issue. We can either make amendments here and there, set- ting 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 Constitu- tion', it seems we are heading for the second option. Either way, the issue has to be considered care- fully. There might be sufficient reason for the Constitution to be fundamentally rethought; and, while keeping what was positive about the original – for it has un- doubtedly worked pretty well over the last 50 years, despite occa- sional loopholes – we may want to change conceptually. I think that here, even the University and aca- demics in general should contrib- ute to the discussion. We never seem to discuss things at any real depth…" Even if rewritten from scratch, a new constitution is unlikely to dif- fer too radically from the present one in terms of the relationship between Parliament and Govern- ment. "You can't have a situation, in our Constitutional set-up, where the executive is completely dis- tinct from parliament. There must be, at this moment in time, an overlap between the two struc- tures. We can discuss appointing Cabinet members from outside parliament, but I don't think there should be a complete divide. Af- ter all, the Executive also has a Constitutional duty to govern; it should be fully operative, and giv- en the space it needs to carry out this function. Ultimately, how- ever, the seat of power should be Parliament." Parliament decides laws, and the executive is there to implement those laws… or so it goes on pa- per. "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 Ex- ecutive 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 Na- tional Audit Office: only concen- trating on governance, rather than fiscal matters. "The NAO and the Ombuds- man 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 ex- clusively from parliament has, of course, been debated for some time. But Said Pullicino points out other elements of this appar- ent overlap. "Should there be MPs chairing boards within the execu- tive? If so, what sort of watchdog role can parliament really fulfil? These are concepts that have nev- er 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 gov- ernment regardless of who was in power. This was one of the good legacies left behind by the British era: a strong civil service to oper- ate independently of whoever oc- cupied 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 independ- ently of their own convictions. We seem to be moving away from this model, and towards a more Amer- ican style… whereby the incom- ing 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 analo- gy to the issue of transparency and accountability. "If I may general- ise slightly: the broader mental- ity, 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 Interview By Raphael Vassallo maltatoday, SUNDAY, 10 JANUARY 2016 Going back to basics 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 WATCHDOG 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… DEPTH