Contribution by the Parliamentary Ombudsman, Chief Justice Emeritus Joseph Said Pullicino
at a workshop entitled
‘The Mediator a main contributor to building democracy’
WORLD HUMAN RIGHTS FORUM
Second Edition, Marrakech
27-30 November 2014
The theme of my contribution focuses on the Mediator and Ombudsman as a main contributor to building democracy. A theme that needs to be developed along three main strands of thought. The definition of democracy; the functions of the Mediator and Ombudsman within the constitutional framework of a democracy; and their contribution to building and strengthening that democracy through the exercise of their functions.
The definition of democracy
Democracy is traditionally defined as a form of Government in which all eligible citizens are meant to participate equally, either directly or through their elected representatives indirectly, in the proposal, development and establishment of the laws by which their society is run. The term democracy is derived from Greek and means “the rule by the common people”. It describes a system of government in classical antiquity that was developed by citizen-subjects as a reaction to a concentration and abuse of power by their rulers. A basic concept that remains today at the root of all modern democracies.
Whatever the constitutional set up a society chooses to be governed by, the essential finality of the democratic nature of a system of Government requires not only universal acceptance of the principle that the members of that society have the right to determine how and by whom they are to be governed, but also that that system of Government provides for the adequate protection of individuals against the abuse of power by those entrusted by them to govern them.
It is abundantly clear from these basic concepts that in a democracy, it is the individual and not those who govern who is at the centre of government. It is the duty of those who govern to serve and look after the interests of the individual and the common good. This is in complete antithesis to the definition of other systems of Government like a totalitarian regime, an authoritarian regime and a theocracy.
To be qualified as a modern democracy a country needs to fulfil some basic requirements. These include a guarantee of fundamental human rights to every individual person. This not only in relation to the State and its authorities but also in regard to other social groups of persons that make up its society. Its system of government needs to recognise the separation of powers between the institutions of the State. Between Government – the Executive power, Parliament – the Legislative power and the Courts of Law – the Judicial power. The fundamental freedoms of opinion, of speech, press and mass media as well as religious liberty have to be recognised and enforced. The system of government in a democracy should be based on a general and equal right to vote and the principles of good governance need to be generally accepted.
If a country’s written or unwritten constitution recognises these basic elements of government and puts them in practice, it has the right to be recognised and accepted within the universal family of modern democracies.
Finally, democracy is more than a set of constitutional rules and procedures that determine how a government functions. It is a way of life based on tolerance and freedom by which society including institutions, political parties and associations organises itself in various ways, to further common objectives in a spirit of coexistence and solidarity. It has been said that the fundamental pillars on which a pluralist society, enjoying the fruits of democracy, are built include:
- Sovereignty of the people
- Government based upon consent of the governed
- Majority rule
- Minority rights
- Guarantee of basic human rights
- Free and fair elections
- Equality before the law
- Due process of law
- Constitutional limits of government
- Social, economic and political pluralism
- Values of tolerance, pragmatism, cooperation and compromise
Having drawn the essential characteristics that a modern democratic State needs to incorporate, foster and promote in its system of government, One should stress that the people in every country have the right to determine what type of government and what constitutional set up is best suited to provide a good and transparent public administration.
No country or group of countries has the right to impose on other countries a particular type of constitutional set up. While it is true that most democracies today are representative, it does not necessarily follow that the Parliamentary style of democratic government needs to be considered suitable and acceptable to other countries. Every country should feel free to adopt the constitutional regime that it considers to be most suitable for it and consonant with its historical system of government, customs, traditions and social and economic development. While doing so however, care should be taken to ensure that it will be the people who ultimately sanction and approve the constitutional regime of their country. The principle that all power of the State emanates from the people and that those entrusted with the government of the State are there to provide a service to the people to administer the country for the common good, should be guaranteed.
The functions of the Mediator in a democracy
I am laying stress on the importance of the relationship between the individual and the State because it is precisely within this relationship that the Mediator and the Ombudsman exercise their functions as defenders of the rights of individuals. Rights that invariably find their roots in the essential elements of democratic rule described above. It is therefore a necessary corollary to this statement that, when exercising their functions, the Mediator and the Ombudsman are contributing towards building and sustaining democracy in the country.
I will now attempt to outline to what extent the Mediator and Ombudsman can positively impact on the democratic environment in which they operate.
Analysing the raison d’être of the setting up for the Ombudsman institution, the nature and substance of its functions, one is struck by the notion that these are essentially a mirror reflection of the essential elements of democracy just outlined. To my mind the setting up of the Ombudsman institution in its various forms is nothing less than a major evolution of the democratic process. It is a classical manifestation of putting democratic principles in practice.
Historically, the institution was set up by the King and autocratic rulers to afford a level of protection to their subjects against administrators appointed by them to manage public affairs. The Ombudsman was meant to provide an effective check against administrators who abused their powers. In modern times, the Ombudsman institution has retained these essential functions but has been remoulded to satisfy the exigencies of a modern democratic State that recognises the separation of powers and the basic principle that it was the legislature that makes laws and the executive that administers them.
The milestone, radical change was the recognition by the elected representatives in the legislature that the individual could be wronged by the acts of the Executive, that he had the right to seek redress and that the State was in duty bound to provide an adequate remedy to proven injustice and maladministration. The legislature also recognised the need to have an independent, autonomous authority with wide powers to investigate complaints of citizens as an added safeguard in a network of checks and balances to ensure good governance. An authority headed by a Mediator or Ombudsman appointed by the legislature and directly answerable to it.
The concept that an individual has rights that need to be safeguarded by the State, may refer to his fundamental rights and freedoms that are guaranteed and protected by the Constitution. It may also refer to the economic, social and political rights, interests and expectations that are advanced, created and protected as determined by Parliament in a democratic political system. It is also accepted today that these rights include the expectation to receive fair, equitable, just and considerate treatment at the hands of officials who wield public power.
When an individual claims that he has been unjustly treated by the public administration, the Ombudsman should be able to give a ruling as to whether the government department or authority in question has acted properly. This is the quintessence of democracy in action. The core function of the Ombudsman is to defend the rights of every individual. The intrinsic value of the human person and the need to afford it effective and adequate protection against arbitrariness and abuse by those in power, translate in practice the ideals of a democratic State.
The aggrieved individual is given through the Ombudsman institution, an effective tool not only to vindicate his rights but also and more importantly, to ensure a correct and transparent public administration for the common good by an Executive accountable for its actions.
Ombudsman’s contribution to building democracy
The stronger the Ombudsman institution in a country is, the greater will be its contribution to the democratic credentials of its society. The institution can only effectively contribute towards building and sustaining the democratic environment if it enjoys full autonomy and independence of the Executive, in strict adherence to the Paris Principles.
In my view however, that should be the minimum sine qua non standard by which one could gauge the level of acceptance by a country’s legislature of the need and utility of having an ombudsman institution to defend its citizens. I strongly believe that the sights of Ombudsmen and Mediators should be aimed much higher if they wish to maximize their impact on the democratic development of a country.
In this context and in conclusion, I shall be referring to a number of proposals that I recently put forward to government on how to strengthen the Ombudsman institution in Malta. These proposals are contained in a document that you can access on our website: www.ombudsman.org.mt. If accepted by government, they would enhance its constitutional status, broaden the functions of my Office, give added protection to citizens and further consolidate the democratic process.
One of the proposals is that the Constitution should recognise the right to a good public administration as a fundamental right and should also expressly recognise the principle of the State’s liability for the actions of its officers as well as the right of the individual to seek redress against the State for damages suffered. That is the right that the Ombudsman and Mediator are bound to uphold in the exercise of their functions.
Another proposal recommends the strengthening of the constitutional status and rule of the Parliamentary Ombudsman. It is proposed that the Constitutional provisions governing the institutions of the Parliamentary Ombudsman and the Auditor General should be put on an equal footing. Any meaningful exercise to strengthen the Ombudsman institution should have as its starting point, a univocal, political statement, expressed by the people through their Constitution, that they intend the Auditor General and the Ombudsman, as Officers of Parliament answerable to their representatives, to be their watchdog and defender to ensure a clean and transparent administration by the Executive. Their method of appointment, term of Office, security of tenure, the funding of their office and conditions of service should therefore be constitutionally protected to ensure that they can exercise their functions freely and without undue influence, in an institution that is truly independent and autonomous.
Since 2010 the Ombudsman institution in Malta benefits from a high degree of specialisation through the appointment of Commissioners to investigate complaints on health, education, and environment and planning. These Commissioners who are also Officers of Parliament, work in an integrated office under the overall supervision of the Ombudsman. I feel that there is scope for further specialisation. I have recommended that the government should carry out a study to establish whether there is need to appoint other Commissioners to investigate complaints regarding persons deprived of their liberty, regarding consumer rights and against local councils.
I also recommended that the government should carry out a study to establish whether authorities and institutions set up by law, that have functions akin to those of the Parliamentary Ombudsman, like the Commissioner for Children and the National Commission for Persons with a Disability and for Mental Health, could usefully be converged with the Office of the Parliamentary Ombudsman while fully retaining their operational autonomy.
I also suggested that government should consider extending the Ombudsman’s jurisdiction to cover economic activities that are now provided by the private sector but that invariably still encompass a strong public service obligation. I recommended that the provision of these services should fall under the scrutiny of the Ombudsman as an independent overseer, to ensure that the consumer is being well provided with services that the legislator considers to be essential for society.
Finally, I also proposed measures on how the Ombudsman’s recommendations could be rendered more effective. I continue to be of the opinion that the Ombudsman’s recommendations should remain non-binding, but I believe measures need to be taken to ensure that the aggrieved citizen, whose complaint was found to be justified by the Ombudsman, is assured that he had a fair hearing. This could be done by a referral of the case to one of the Committees of Parliament that could discuss its merits.
Such a procedure, if correctly followed in deserving cases, would respect the Constitutional hierarchy, and strengthen the relationship between the Ombudsman as a constitutional authority and an autonomous Parliament to which he is accountable. It would also give the aggrieved citizen the optimum satisfaction that his complaint was considered in the highest political forum and subjected to the scrutiny of public opinion.
These proposals among others, are meant to be a small contribution to further empower the individual to react against injustice and to encourage him/her to stand up for his/her rights. Undoubtedly, this initiative could be considered to be as another contribution towards building and strengthening democracy in my country. I hope you find them interesting and worth considering.