Issue link: https://maltatoday.uberflip.com/i/624751
maltatoday, SUNDAY, 10 JANUARY 2016 15 seems to be: 'the executive has the duty to govern; so let it gov- ern. Then we'll see when the time comes'. I don't think this is the way it should be. I believe that Parlia- ment should be there to scrutinise and audit – within established parameters and limits – what the government does at all times." One way in which the Ombuds- man's office recently tried to em- phasise this point was the pub- lication 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 Consti- tution? 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 ef- fective 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 indi- vidual 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 fundamen- tally positive. But I strongly be- lieve 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 discus- sion. 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 in- voke 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 recommen- dations 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 be- ing undermined? "I wouldn't say so. To make things clear: at present, we have full au- tonomy 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 ex- ample. 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 dif- ference, 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 ap- pealed; but again, that doesn't add up to undermining… OK, perhaps the word itself may be contested. There remains the question of whether the Ombuds- man's recommendations to gov- ernment, 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 investiga- tions can be ignored with impuni- ty… how effectively can the Om- budsman 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 be- come 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 parliamen- tary committee, for example. On paper, this already exists. If an is- sue 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 con- trol by parliament…" And yet, other Constitutional bodies which serve similar func- tions do have wider executive powers. The Broadcasting Au- thority, for instance – of which Dr Said Pullicino was once chairman – scrutinises and 'investigates' the broadcasting sector, and its deci- sions 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 leg- islations. We can say, 'this law is just, this law is unjust'. Those are however subjective viewpoints. The Ombudsman's opinion car- ries weight, and as such should be given due consideration. But it doesn't follow that his opinion should become law." Interview For Ombudsman Dr JOSEPH SAID PULLICINO, the ongoing discussion on Constitutional reform presents an opportunity to return to the fundamental questions PHOTOGRAPHY BY RAY ATTARD