Speech by the Ombudsman during the Conference: Human Rights and Equality 2.0

Speech by the Parliamentary Ombudsman at the Conference: Human Rights and Equality 2.0

The Ombudsman was part of the panel entitled: ‘Structure, Framework and the Human Rights and Equality Commission Act’

Grand Hotel Excelsior, Valletta 24 May 2018

The Office of the Ombudsman cannot but welcome the positive initiative taken by the Government of Malta, through the Ministry for European Affairs and Equality, to give flesh to the Ombudsman’s proposal of enacting legislation establishing a National Human Rights Institution for the Maltese Islands. Indeed, this Office has for several years been advocating the need to develop a fully-fledged National Human Rights Institution as evidenced through concrete proposals published in this Office’s annual reports over the years, papers delivered during several conferences and, most notably, in its reports on the subject entitled “The setting up of a National Human Rights Institution” a proposal by the Office of the Parliamentary Ombudsman, October 2013. The prestige earned by this Office, apart from other considerations, derives also from the fact that it is also recognised internationally as performing the functions of such a National Human Rights Institution since it has had to step in to fill in a void in extant public administration structures in the absence of appropriate legislation on the subject-matter.

Notwithstanding its enthusiasm to see this proposal mature and go through the parliamentary procedure, this Office entertains a number of reservations on the text of the three Bills which will give flesh to the National Human Rights Institution in the Statute Book. I therefore propose to make full use of this short intervention to highlight a number of pertinent points which still need addressing in these Bills so that the end product will be by far a better drafted piece of legislation which, like the Ombudsman institution, will serve Malta for years to come, and is in harmony with other laws, especially from the institutional side of things. Of course, the three Bills need to be studied in relation to the method being proposed as to how the National Human Rights Institution will be established by law, as this will undoubtedly have an impact on other laws, not least the Constitution, bearing in mind that such a function is already being limitedly carried out by the Office of the Ombudsman since its establishment in 1995, by the Commissioners for Administrative Investigation since 2010, and by other sectoral ombudsman institutions approved by Parliament over time. In this way, the new equality and human rights regime will be more focused, provide more legal clarity, foster institutional coherence, and ensure that extant competent institutions will still continue to contribute in their respective fields of competence and specialisation to the governance of Malta without bringing about new overlaps in their functions as that would end up creating confusion, not clarity, in people’s minds.

In brief, the main features of the three Bills which require more profound thought and detailed examination concerning their implications on the Constitution, of which the Ombudsman is an officer thereof, the public administration in general, over which the Ombudsman exercises supervisory investigative functions thereupon and the administration of justice in general, where the Ombudsman has a keen interest to see strengthened, surely not weakened, his role of defender of citizens’ rights through his mediatory function with the public administration. There are some aspects which need addressing to ensure that there is no replication of functions between the Ombudsman and ombudsman-like institutions, on the one hand, and the proposed Commission, on the other; that extant and proposed state institutions do not end up in direct competition with each other, not only because that will bring confusion in the mind of complainants as to which is the competent authority in the field of equality and human rights but also because this will burden government coffers with undue expense and even risk creating divergent and contrasting, not to say contradictory, decisions on the same subject-matter; and that there is a neat line of demarcation between all competent institutions of the state involved, both administrative and judicial. At the current state of play, the Bills do not properly guarantee that these laudable objectives are met.

Some of the most serious concerns raised by my Office in its “Reflections on the White Paper” have unfortunately not been addressed.  The Bill seems to have been drafted in a vacuum without taking into account the existing constitutional, judicial and quasi-judicial structures as well as public authorities set up by law that are valid stakeholders operating in the field of the promotion and protection of human rights.

The Bill seeks to create a strong, parallel authority with functions that at no point converge or integrate with those of these other authorities and structures.  There is a lack of clarity in the delineation of rules that should govern the relationship between the new authority and existing ones, that will apparently be allowed to continue to function under their founding statutes.  This to my mind will inevitably result in confusion as to what remedy should be sought by an aggrieved person.  It will provoke legal uncertainty in the interpretation and application of human rights as well as conflicting decisions.  This could have extremely negative consequences especially in those cases that involve authorities that have a judicial or quasi-judicial function.

Even more worrying is the unexplainable way in which the Bill seems to totally ignore the Constitution and the specialised constitutional authorities it sets up and that have exclusive jurisdiction to define, determine and enforce specific areas of the fundamental human rights spectrum, including equality and non-discrimination.  These include the Employment Commission with specific jurisdiction to determine complaints involving political discrimination in employment, the Public Service Commission that determines complaints on improper discrimination in the public service, the Broadcasting Authority that ensures balance and non-discrimination in broadcasting and others.

Again the eight authorities set up by law that have been selected to be ex officio members of the Commission all have in varying degrees, a quasi-judicial function and some of their decisions can be enforced.  It is unclear how the Commissioners heading these authorities will deal with complaints filed with the HREC that would otherwise fall within their specialised jurisdiction.  In the absence of an exclusion clause, one could envisage parallel investigations on the same merits by the Board and the sectoral ombudsman with ensuing contrasting decisions and conflicts on jurisdiction.

Even more inexplicable is the fact that the Bill ignores completely the Constitutional Court, that is the supreme judicial organ with exclusive jurisdiction to finally determine whether an act or omission constitutes a violation of a fundamental human right or a threat to it.  Strangely an appeal from any decision of the Board of the Human Rights and Equality Commission will lie with the Court of Appeal and not with the Constitutional Court.  This when the Constitution makes it mandatory for the Court of Appeal, or indeed any other Court or Tribunal, to refer any issue regarding a decision on an alleged violation of a fundamental right or its threat to the Constitutional Court.  I have been advised that such a situation could put in doubt the very constitutionality of the Bill as drafted in this respect.

Composition of the Commission:

The Bills exclude the Ombudsman institution completely from its remit when, as stated above, the Office of the Ombudsman has been carrying out the functions of an NHRI since its inception 22 years ago. Were the Ombudsman and the aforesaid Commissioners to be represented on the Commission, this would have of course served as an excellent forum for the exchange of best practices, to discuss complaints which cut across more than one office with administrative investigative functions, to compile common standards and procedures and to learn from the experience of one another.

Matters of Equality:

One of the Bills proposes that the Ombudsman will have no power to investigate the Commission. Whilst the Office of the Ombudsman has no difficulty with that in so far as the Commission’s decision making powers on citizens complaints are concerned in terms of breach of human rights, the Ombudsman fails to understand why the Ombudsman should not investigate the Commission in respect of staff matters relating to its internal administration in respect of for example appointments, promotions, pay, pension rights and conditions of service of the Commission’s employees.

Overlap of functions:

The Bill to amend the Constitution (proposed clause 64B (1)) and the Human Rights and Equality Commission Act, 2018 Bill envisage an overlap of functions between the Office of the Ombudsman and those of the Commission. The latter will be mandated to promote and protect non-discrimination in Malta (clause 3(1)).  In particular, in terms of clause 13(i) and (j), the Commission has power to receive complaints and investigate discrimination (related to this point, see also clauses 14(c), 15, 16, 24, 26 and others). Nonetheless, these provisions are in conflict with article 22(1), especially 22(1)(b), of the Ombudsman Act which empowers the Ombudsman, inter alia, to investigate allegations of discrimination by the public administration. It does not make sense from an administrative point of view to have two organs of the state replicating each other as it will bring about confusion in the minds of the people as to which entity of the state they should have recourse to in case of discrimination as well as divergent, not to say, opposing and contradictory, decisions being taken by the Ombudsman and the Commission, more so that both institutions will continue to work independently of each other with no policy coordination taking place at a higher level. Such conflictual situations should be avoided, not promoted.

Other matters:

Of course, there are several other features in the Bill which need proper examination but which, due to time restrictions, it is not possible for this office to delve deep into during this conference. However, it is the intention of this Office to look into more detail in the text of these three bills before, during and after their passage in Parliament.

By way of conclusion, the Office of the Ombudsman commends the initiative which government is taking within the realm of equality and human rights as well as the discussion which it is provoking both through this conference and other consultations. However, what is of the utmost essence is that any legislation which is enacted by Parliament on this subject-matter complies with the objectives stated above, the end result is always a substantial improvement on the current one and that the laws in question will be durable and withstand the test of time.

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