A Constitution to serve the people

Speech by the Parliamentary Ombudsman
Chief Justice Emeritus Joseph Said Pullicino
at the Third President’s Forum
25th April 2013

The right to good public Administration

Il vero potere é il servizio” – Pope Francis

Introduction

I shall start my short contribution with a personal opinion.

I do not believe that it is wise to make much emphasis in introducing this forum as an exercise in the preparation of a so called “second republic”.  At this stage that is a political slogan that could eventually be recognised as valid by historians if the Constitutional changes brought about warrant it.  It is a term that would be appropriate only in the case where the Constitutional changes approved signalled a major and clean break from the previous rules governing the country’s democratic, parliamentary republican system.  The term “second republic” is not a legal concept.  It should not therefore condition our critical considerations when discussing if, how and to what extent our present Constitution requires to be updated to meet present needs.

To date, I do not perceive any urgency in the country to radically change the institutional framework on which the Malta Constitution is based and that has secured for the country a republican, democratic State in which the rule of law and respect for fundamental freedoms prevail.  Neither is the existing constitutional order, based on the separation and interdependence of the legislative, executive and judicial powers of the State, being put in doubt.

0714-13 (13)Essentially our Constitution with the wise amendments made to it from time to time has served the country well for fifty years.  Notwithstanding excessive political polarisation and severe ideological confrontation that are themselves a sign of democratic vitality, the Constitution has evolved into an effective legal instrument that guarantees a relatively stable legislature, a good level of administrative governance and an independent judiciary.

It is my belief that we can continue building on well-tried existing structures that have proved to be built on solid institutional foundations.  There is however much that could be reviewed to meet the new challenges the country is facing, seen from a solidly independent, post colonial perspective.

Consensus

There is general agreement in the country today that the time was ripe to re-examine the Constitution, to verify and determine what provisions needed to be changed, improved, added or deleted to make the supreme law of the country a more effective legal instrument that will continue to ensure a stable, adaptable, accountable, open and representative government that provides for the exigencies of an ever evolving, modern society.

There is no need to stress that any changes made have to be the result of mature thinking and wide consultation that lead to a high degree of consensus.  They can only be implemented within the framework and according to the provisions of the present Constitution and amended in accordance with the inbuilt provisions for its revision.

Changes should be forward looking to provide for the future.  They should also be respectful of past tradition to ensure continuity.  This forum is a manifestation of that consultation.  Any revision of the Constitution should not be entrusted solely to the House of Representatives which exercises legislative power, even if amendments have, in some respects, to be approved by a qualified two-thirds majority.  It should also be ratified by the popular vote mechanism that the Constitution itself provides.

Referring the proposed amendments to the people for approval is not just a matter of political convenience.  It is a matter of fundamental principle because the Constitution of the country is there to serve the people; it is not there to serve the State.

Core Issue

This point brings me to the core issue of my contribution.

To develop my argument I require to refer briefly to basic concepts.  Simply defined, a Constitution is the legal framework of the State.  It lays down how power is acquired, exercised and lost.  It establishes the structure and functioning of the organs of State, defines and guarantees rights and freedoms.  The Constitution prevails over any other norm.  Approaching the subject from a purely legal perspective and not from the much wider focus of political science, it is clear that the operative word in this definition is power.  We are here concerned not only about how that power is exercised but also, and more importantly, how the exercise of that power affects the people, namely the subjects subjected to it.

The present Constitution is based on the Westminster model in which executive authority is exercised in the name of the Head of State who is, theoretically, its original source.  Under the present Constitution, the Prime Minister and his Executive, though representing the people through an election by universal suffrage, receive their mandate to govern from the Head of State who, with some notable exceptions, is bound to act on the advice of his Prime Minister.

Power cascades

Power cascades from the top downwards.  Those who still favour the Westminster model in its original mode maintain that Parliament, like the sovereign, is not only omnipotent, it can also do no wrong.  It is a system of Government that favours the concentration of power in the hands of the Prime Minister, the Cabinet and the Executive.  Once elected there is little to bind Government and indeed Members of Parliament on all sides to the will of their electors.  They do not necessarily feel bound either to abide by the promises made during the election campaign or by the electoral program of the party of which they formed part.  Indeed they do not need to acknowledge that the power they temporarily obtained on election was given to them by the people and that they had to be accountable to those who elected them to administer the country according to their specific mandate.  An issue that has to be debated.

The only real curbs on the exercise of power by the Prime Minister and his Cabinet are public opinion and, to a lesser extent, the balance of party membership in the House of Representatives.  Fortunately the drafters of our Constitution recognised the risk of an excessive concentration of power in the hands of the Prime Minister and his Cabinet.  It was for this reason that they introduced a number of constitutional authorities meant to restrain the exercise of these powers in certain delicate areas of the public administration.  These include the Office of the Auditor General, the Public Service Commission, the Broadcasting Authority, the Employment Commission and lately the Office of the Parliamentary Ombudsman.

It must be said that most of these authorities were originally set up to ensure a smooth and correct public administration or to avoid political discrimination and create a level playing field in employment and public broadcasting.  With the notable exception of the Office of the Ombudsman these authorities were not set up with the specific purpose of empowering the people.  Though these authorities are undoubtedly meant as a break on the manner how power is exercised by the Executive and, when they function well, certainly benefit the people, they are not built in the Constitution as effective instruments to empower the people to ensure that they have an efficient, clean, transparent and accountable public administration.

Redrafting needed

Those provisions of the Constitution that establish the origins of State authority, in my opinion, require rethinking and redrafting.  The Constitution should do away with the outdated and archaic concept that the authority of the State emanates from the Sovereign or the President.  In truth, this concept is not explicitly stated but only tacitly assumed throughout the Constitution.  The Malta Constitution should clearly recognise, like many modern ones, that all State authority emanates from the people who, through free elections choose those who are to govern them, according to the Constitutional instruments approved by them.  The people delegate their power to the persons they choose so that that they can administer the country, in their name, for the common good.  They are not there to govern them.  They are there to serve them.  They are bound to serve them according to the supreme law of the land, that is a norm above all others and that can only be changed according to procedures that it itself establishes.

Power exercised by the people

It is therefore from the power exercised by the people that the Constitution attains its supremacy.  The Constitution is not there to serve the State; it is there to serve the people.  This is why the President himself and the State in all the ramifications of its powers are subject to the Constitution.  That is why the Constitutional court is given jurisdiction to determine a right of action on the invalidity of laws.  An action that can be brought forward by any person, even though he has no personal interest in its outcome (actio popolaris).  That is why article 6 of the Constitution provides that if any other law is declared by that Court to be inconsistent with the Constitution, it was the Constitution that should prevail and the other law, shall, to the extent of the inconsistency, be void.  This is one of the very rare instances where the Constitution recognises the right of the individual, to seek to uphold the values enshrined in it against the powers of the legislature when enacting a law which was inconsistent with the Constitution.

It is unfortunate that the case law of the Constitutional Court has not adequately recognised the supremacy of the Constitution. Nor has it properly exercised its inbuilt powers to protect the country from legislation that it had itself declared to be inconsistent with the Constitution.  It seems to have accepted that Parliament had powers that went beyond the Constitution or indeed that it could act outside, if not indeed in violation, of the norms it lays down.

My erudite colleague Judge Giovanni Bonello will no doubt be presenting you with an in-depth analysis on this aspect of the question.

The real source of power

Power is conferred by the electorate on its representatives so that they could use it according to their mandate for the common good.  It is not given to be abused of according to their whims, for their personal agenda.  Power is given to them to be of service to others.  In the simple wise words of Pope Francis “il vero potere é servizio”.

It is therefore necessary to ensure that the real source of power is enshrined in the Constitution, that accountability of the State for the actions or inactions of its public servants is clearly assured and that the people are empowered through appropriate mechanisms, most of which already exist in the Constitution but need to be strengthened, to guarantee to the individual the exercise of his right to a good public administration.

0714-13 (14)The Constitution of the Italian republic in its very first article, graphically but poetically declares that “La Sovranita` appartiene al popolo che la esercita nelle forme e nei limiti della costituzione”.  The Italian people, when declaring their country to be a democratic republic, recognised that, from that day onwards, sovreignity belonged to them and not to their king, sovereign or president.  Similarly, Article 20 the Basic Law of the Federal Republic of Germany, in a more precise, even if in a typically prosaic fashion, states in sub-clause 2 that “All State authority is derived from the people.  It shall be exercised by the people through elections and other votes and through specific legislative, executive and judicial bodies”.  Sub-clause 3 states that “the legislator shall be bound by the constitutional order, the executive and judiciary by law and justice”.

Defence of the Constitution by the People

Moreover the Basic Law, conscious of the country’s negative historical experience, declares the right of “all Germans … to resist anybody attempting to do away with this Constitutional order should no other remedy be possible”.  The supremacy of the Constitution, from which all public authority emanates, needs to be defended by the people from any attempt by anybody to subvert it.  The sovereignty of the State is vested in the people and not in the hands of those who wield power in whatever form, including that derived from a democratically elected majority.

The time is ripe for such constitutional provisions to be included in our Constitution.  These are concepts that underline the accountability of the Executive towards the people.  Indeed, an inevitable corollary to the principle that all public authority emanates from the people, is that public officers, who act in the exercise of the mandate given to them by the people, have to be held accountable to the people.

State to assume responsibility

Moreover the State has to assume responsibility when the actions of public officers cause harm to the people.  It is precisely for this reason that Article 34 of the Basic Law of Germany states that “Should anybody in exercising a public office, neglect their duty towards a third party, liability shall rest in principle with the State or the public body employing them.  In the event of wilful intent or gross negligence, remedy may be sought against the person concerned.  In respect of claims for compensation or remedy, recourse to the ordinary courts shall not be precluded.”  Similarly Article 28 of the Italian Constitution lays down that “I funzionari e dipendenti dello Stato e degli enti publici  sono direttamente responsabili secondo le leggi penali, civili e amministrattive degli atti compiuti in violazione di diritti.  In tali casi, la responsabilita civile si estende allo Stato e agli enti publici”.

Though the wording and emphasis in the German and Italian constitutions are different, with the former seemingly putting the State primarily and directly responsible for damage caused by its public officers in the performance of their duties, while the latter apparently holding public officers primarily responsible and the State in subsidum, the substance of both provisions is essentially the same.  Both constitutions and indeed many others – declare that the State has to assume responsibility for damage caused by its public officers in the performance of their duties, when they exceed their mandate and abuse the power given to them by the people within the terms of the Constitution.

The principle of State liability

This liability of the State is a necessary corollary of the right of the individual to a good administration.  There is no such provision in the Malta Constitution.  What is even worse is that legislation in Malta, even since independence, has been very reluctant to accept the principle of State liability.  For many years, the prevalent mentality of successive governments has been over-protection of the Government’s powers to govern.  The old colonial mentality that governments were there to decree and administer while the people had to follow and obey without questioning, still prevailed.  Successive public administrations in republican Malta remained essentially autocratic.  Government had all the power and the people were expected to obey without questioning.

Indeed for many years the official line was that Government was not even bound to give any explanation for its actions.  If ever it was called upon to grant compensation for damages resulting from the actions of public servants, it would only do so grudgingly and against a declaration by the injured party that it was being paid ex-gratia and not out of any admission of responsibility or guilt.  It has taken Malta the best part of fifty years to start creating dents in the thick armour of Government’s protection of itself and its public officers.

Legislation in Malta, even up till today, has been very reluctant to accept the principle of State liability.  Most laws, intended to provide a service to citizens either by a government department or public entity, almost invariably contain provisions that totally or partially exempt the Government from liability.  The State is often protected by provisions that allow it and its officers to put administrative hurdles in the path of citizens who claim they were not treated justly and fairly by the public body providing the service.  Until fairly recently the Government would even claim the right not to disclose, even in Court, official information that materially affected the rights of citizens.

The authorities set up in the Constitution itself with the function to verify and report on the actions of the Executive, like the Public Service Commission, the Office of the Auditor General, the Employment Commission and others are more meant as checks and balances to control administrative malpractice and abuse than as tools in the hands of aggrieved persons to seek redress against injustice and abuse of power.

The Ombudsman Act

Perhaps the only major law that was specifically intended to empower persons to seek redress against maladministration that affected them personally, was the Ombudsman Act (Act XXI of 1995).  It was then that the House of Representatives finally resolved that individuals should be served by a workable system of administrative justice that would put right those things that were badly managed and provide appropriate redress to individuals who have experienced delay and inefficiency and the distress that often results from maladministration.

The setting up of the Office of the Ombudsman provided the first step for this need and established a new mechanism that would respond directly to the House of Representatives and promote the proper behaviour of the public administration.  The Act not only promotes good governance.  It also underlines the accountability of the State and its officers in the proper execution of the mandate they received from the electorate.  Up till then the legislator was very wary of effectively assuming the role and responsability of a bonus paterfamilias.  Even less was it prepared to open itself up to an external audit of its actions by an Ombudsman, whose Office has been given constitutional recognition in 2007.

The Ombudsman Act was perhaps the first major tangible sign that things were changing.  In fact since the late 1980’s, there has been a marked shift towards the promotion of an open and transparent administration fully accountable in the various levels of national management.  A number of major legislative initiatives intended to create the necessary structures and mechanisms to improve the public administration were taken.  These included major laws like the Freedom of Information Act, the Data Protection Act, the Public Administration Act, the Administrative Justice Act, the law setting up the Commission for Investigation of Corruption, the 1987 law setting up Commissions for Investigation of Injustices and others.

Radical change

This radical change in mentality in favour of ensuring a transparent and accountable administration to ensure that the public is treated justly, fairly and without improper discrimination was undoubtedly the result not only of the country’s total exposure to modern concepts on good governance, that have developed in post cold war Europe and elsewhere.  It was also dramatically spurred on by Malta’s decision to attain full membership of the European Union and consequently to adopt and maintain fully the basic values of transparency, accountability and fair decision making that should lie at the core of the public administration and that constitute the essence of good governance.  Those basic values are incorporated in the European Code of Good Administrative Behaviour that translates in a tangible and comprehensible manner the right to good administration acknowledged and defined in the Charter of Fundamental Rights of the European Union (article 41) to which Malta is a signatory.  That Charter was incorporated by the Union in the Treaty of Lisbon on the 1 December 2009.  A Treaty to which Malta subscribed and that in the words of the Union’s President Barroso “puts citizens at the centre of the European Project.”

The right to good administration

That article in the Charter expressly lays down that “every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union”.

In sub article 2, the Charter lays down that the right to good administration includes;

  1. The right of every person to be heard, before any individual measure which would affect him or her adversely is taken;
  2. The right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;
  3. The obligation of the administration to give reasons for its decisions;

It is very pertinent to point out that sub article 3 of article 41 of the Charter declares that “every person has the right to have the Community make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the law of the Member States”.

A clause that expressly recognises the principle of the State’s – (the Union’s) liability for the actions of its officers and the right of the individual to seek redress against the State for damage suffered.

State’s Duty of Care

A provision that is completely in harmony with the recognition of the State’s duty of care in many progressive European constitutions and which I am proposing should be included in our Constitution.

It was in this spirit and with this background that, during the debate on the Bill put forward by the Government to entrench the Office of the Ombudsman in the Constitution way back in 2006, I had proposed that the right of every individual to good administration should be recognised as a basic right in the Constitution.  In fact, at that time, I had submitted that the formal recognition of the right to good administration in the Constitution would not only strengthen the right of citizens to a just and transparent administration.  It would also motivate and justify the decision of the House of Representatives to entrench the Ombudsman in the Constitution as a guardian of that right.  It should be clear that recognising the people’s right to a good public administration was a necessary corollary of the principle that the Constitution should be an instrument to serve the people to ensure good governance.

Incorporating that right in the Constitution means that the individual is given an effective legal tool to exercise that right by keeping the public authority accountable for its actions through judicial and other processes.

Keeping the Executive accountable

If we are agreed that the sovereignty of the State lies with the people who exercise their power to be governed by their elected representatives, it is obviously a natural and necessary corollary for the people to recognise their right to be properly governed in their Constitution.  This is the right by which, in the first place, the people hold their elected representatives accountable.  It is against this yardstick that the actions of their Government should be gauged.

Good governance encompasses generally the whole spectrum of the organs of the State.  The right to good administration specifically empowers the people to keep the Executive accountable to it in the exercise of its functions.  Its recognition by the Constitution would be a material, tangible manifestation of that empowerment.

Although the Ombudsman’s proposal in 2006 to include this right in the Constitution was not included in the Act to amend the Constitution of Malta (Act XIV of 2007), the House of Representatives approved the Public Administration Act which affirms “the values of public administration as an instrument for the common good to provide for the application of these values throughout the public sector”.  This Act incorporates the basic principles of a code for good administrative behaviour in a binding law.

I strongly believe however that the fundamental right of the individual to a good public administration should be enshrined in the Constitution.

Reassessment of Administrative controls

Although the Constitution does not recognise the right to a good administration as a fundamental right, it does provide, as stated, a number of authorities and commissions with the function to regulate, verify and control specific areas of the public administration.

I think that there is scope to reassess these authorities and commissions in a holistic manner from the perspective of the rights of the people to be well administered, emphasising the protection that the individual should have against public maladministration, improper discrimination, abuse of power and violations or threats to their fundamental freedoms.  I believe that this reassessment should be made in the context of creating a strong bond between Parliament and these constitutional bodies that are essentially intended to scrutinise the actions of the Executive.

The Constitution already provides that these bodies do not form part of the Executive.  They generally conform with the Paris Principles regarding their administrative and financial autonomy.  They are not accountable to any ministry and they are bound to report to the House of Representatives.  The Auditor General, the Ombudsman and Commissioners appointed under the Ombudsman Act, are considered to be Officers of Parliament.  However, apart from having the right to submit reports to Parliament, which are rarely followed up, the link with the House of Representatives is very tenuous indeed.  Certainly, the individual cannot really feel that he has access in the present setup to have his grievances brought to the attention of Parliament to seek redress against injustice, maladministration and abuse of power.

Structural review

I believe there is need for a structural review of these provisions of the Constitution.  It is suggested that a new chapter be included after the one dealing with “Parliament” to provide for the “Scrutiny of Executive Actions”.  This Chapter would deal primarily with the financial audit carried out by the Auditor General and the administrative audit entrusted to the Parliamentary Ombudsman.  Both authorities would retain their autonomy and continue to exercise their functions under separate laws as hitherto.  However the Constitutional provisions entrenching them should be streamlined, harmonised and improved.

Points to ponder

I refer to some points that easily come to mind in this respect:

i)                    Both the Auditor General and the Ombudsman should enjoy the same constitutional protection.  This is not the case to date.  While the Office of the Ombudsman has been entrenched, the Ombudsman himself does not enjoy constitutional protection.  The constitutional provisions regulating the method of appointment and removal of the Auditor General, his term of office and guarantees of security of tenure have not been constitutionally extended to the Ombudsman.  Similarly, provisions in the Constitution regulating the funding of the Auditor General’s office and establishing his conditions of service, equiparating them to those of a Judge of the Superior Courts, have not been extended to the Ombudsman though they are secured by ordinary law in the Ombudsman Act.

ii)                  These discrepancies should be removed to ensure full protection of the Ombudsman, even though it has to be stated that there has never been any problem with any administration in this respect.  The streamlining of this constitutional recognition and the protection of these and other officers of Parliament is necessary to emphasize the principle that they have to be allowed to exercise their functions in full freedom and that they should be accountable only to an autonomous Parliament, without any allegiance either to Government or Opposition.

iii)                Both the Auditor General and the Ombudsman hold office for a period of five years from the date of their appointment and are eligible for reappointment for one further period of five years.  Experience has shown that there is very often a hiatus between the lapse of the first term and reappointment for reasons unrelated to the Office or its incumbent.  In an effort to ensure more transparency, many countries have opted for a system of a one, long term period of between seven or nine years.  This would not only avoid any risk of undue influence but also would allow the incumbent adequate time to execute his vision and policies for the high office he occupies.

iv)                A need is felt for both these authorities to be given the means not only to communicate to the House of Representatives the results of their investigations on instances they perceive to constitute maladministration but also to ensure that proper procedures are in place to have them debated by the appropriate Committee of the House to which they relate, other than the Public Accounts Committee in the case of the National Audit Office.  In this way Government’s actions would be subjected to the scrutiny of public opinion.  The reports and findings of these parliamentary officers would become more effective even though not enforceable.  What is necessary from a constitutional point of view is to establish, materially and tangibly, the link and synergy between Parliament and its officers.

v)                  One should also examine carefully whether there is still need to retain the Employment Commission in the form set out in Article 120 of the Constitution.  One should study whether the present state of the country’s democratic development justifies the retention of a Commission specifically to enquire into cases of alleged political discrimination in employment. One should examine whether that task could validly be taken over by another constitutional authority with widened functions.  Similarly the functions and powers of the Public Service Commission should be reviewed to establish whether they need to be adapted to meet the exigencies of an evolving public service.  There have, for example, been instances when the Government was unable to implement a recommendation of the Ombudsman to rectify an injustice against a public servant because the Commission disagreed with it.  Such conflicts of jurisdiction need to be ironed out.  Transparency requires that acts of maladministration that cause injustice to public officers must be redressed.

vi)                I have recently proposed that the constitutional functions of the Parliamentary Ombudsman should be extended so that his Office could be recognised as a National Human Rights Institution (NHRI).

I have been pushing forward a proposal for the setting up of such an Institution as a tangible confirmation of the national commitment in favour of and respect for the observance of human rights and fundamental freedoms.

Under this proposal the Maltese human rights institution would be entrusted with the responsibility to ensure the effective implementation of the national human rights standards in the country and also with the task to develop and promote public awareness of these rights and freedoms.  The Office would serve as a catalyst for other authorities, institutions and NGOs with a human rights content in their functions.  The setting up of a Commission for Human Rights would be an added safeguard for the civil, political, economic, social and cultural rights of citizens in the country.

These are some suggestions that could, in my view, help to improve and strengthen the exercise of the citizen’s right to a good administration mostly utilising existing constitutional provisions.  Undoubtedly many more can be put forward.

Conclusion

In conclusion, one has always to keep in mind that the Constitution needs to meet the aspirations of the people to have a direct say in the administration of their Country.  The individual and not the State has to be at the centre of constitutional reform.  Constitutional amendments should not be the result of hasty, superficial conclusions based on populist slogans or political convenience.  They should be the fruit of an in depth debate on the principles and values on which our democratic republic should be based.  They should aim at strengthening the Country’s democratic credentials in full respect of the rule of law, of fundamental rights and freedoms and the principles of solidarity and subsidiarity.  They should be the result of consensus reached after meaningful consultation not only with all shades of political opinion, but also with all strata of civil society.

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