The Venice Commission and the Ombudsman – Part 1

The Venice Commission and the Ombudsman – Part 1

Published September 25, 2026

by the Parliamentary Ombudsman, Judge Joseph Zammit McKeon

The Ombudsman Act (Chapter 385) was enacted in 1995.  The Act was amended in 2010 to provide for the appointment of the Commissioners.  The Act was last amended in 2020.  The purpose of this review is to reflect on the direct and identifiable impact that the Opinions of the Commission for Democracy through Law of the Council of Europe (“Venice Commission”) had on the Office of the Parliamentary Ombudsman in Malta (“the Ombudsman”) by the furtherance of its authority and functions both from a constitutional viewpoint and in ordinary law. 

Reference will be made to Opinion CDL-AD (2018)028 of 17 December 2018, Opinion CDL-AD (2020)006 of 19 June 2020 and Opinion CDL-AD (2020)019 of the 8 October 2020.

Act XLII of 2020

The Constitution - Art 96A

The Ombudsman is a member of the Judicial Appointments Committee ("JAC").

Art 96A of the Constitution is an important provision.  It was introduced by the Constitutional Reforms (Justice Sector) Act (Act XLIV of 2016).  The Act created the Judicial Appointments Committee as a subcommittee of the Commission for the Administration of Justice.  The Ombudsman was one of the original five members of the JAC and therefore the appointment of the Ombudsman predates the Opinion of the Venice Commission of 2018. The inclusion of the Ombudsman (and of the Auditor General, another constitutional office) introduced an external rule-of-law and good-administration perspective into judicial selection, laying emphasis on the independent constitutional oversight function of the two Offices.

In its Opinion of 2018, the Venice Commission welcomed the establishment of the JAC in 2016, but concluded that its composition and remit fell short of ensuring the independence of the judiciary.  That evaluation was reaffirmed in its Opinion of 2020.  The central concern was definitely not the Ombudsman (or the Auditor General) but the overall composition and constitutional function of the JAC.  As far as the latter is concerned, in pre 2020, the JAC essentially vetted candidates but in substance the ultimate appointment of the Judiciary rested with the Executive.  For the Venice Commission that position was not satisfactory.

In its Opinion of 2020, the Venice Commission made five major recommendations for change :  that judicial vacancies had to be brought to the attention of the public ; that at least half of the members of the JAC had to be sitting Judges and Magistrates and elected by their peers ; that the JAC should rank candidates on merit according to clear and transparent criteria, while taking gender balance into account ; that the JAC should propose the candidate or candidates directly to the President of Malta and its proposals should bind the President ; and there should be no exception to this system for the appointment of the Chief Justice.

By virtue of Act XLII of 2020, Art 96A was amended to reflect the substantial adoption of the recommendations, save for the last which was not followed.  In fact, the Chief Justice today is appointed by the President following a vote of not less than two-thirds majority of MPs in the House of Representatives.  The JAC has no say whatsoever in the appointment of the Chief Justice.

From a constitutional viewpoint, Art 96A and Art 64A (which will be examined next), as they stand at present, give the Office of the Ombudsman two diverse constitutional dimensions with a common platform: that of an independent investigator of the public administration; and that of an independent participant in safeguarding the composition and the independence of the judiciary.  This second role is exceptional in comparative Ombudsman law and practice and deserves to be treated as an important part of the post-Venice constitutional evolution of the Office.

Art 64A

In 2007 the Ombudsman acquired initial constitutional recognition by virtue of Art 64A of the Constitution.  Nonetheless in 2020 the Ombudsman moved from a formal constitutional recognition of its investigative function to a more decisive role, following the intervention of the Venice Commission.

Prior to the Venice Commission Opinions and the significant amendments to Art 64A in 2020, the appointment, removal or suspension of the Ombudsman were regulated by the Ombudsman Act, an ordinary Act of Parliament that although incorporating provisions that established a minimum threshold of two-thirds majority parliamentary vote, the provisions of the Act could at any time have been changed by a simple parliamentary majority vote. 

In its Opinion of 2020, the Venice Commission was of the view that this state of the law was not satisfactory, because the provisions did not constitute constitutional guarantees as they were not provisions entrenched in the Constitution itself, but remained rules made within the context of an ordinary Act of Parliament and not subject to a qualified majority vote but governed by the simple majority rule.  Art 64A of Constitution was therefore amended by Act XLII of 2020 to reflect the Opinion of the Venice Commission. 

Because of these amendments, the constitutional standing, protection and functions of the Office of the Ombudsman that already prevailed in the Ombudsman Act 1995 were further strengthened.