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Council of Europe Member States urged to strengthen ‘key role’ of Ombudsman

Threats faced include verbal attacks from government members, laws that undermine their effectiveness and the rejection of reports and rulings.

Joseph Muscat and a member of the AFM

The Parliamentary Assembly of the Council of Europe’s (PACE) Legal Affairs Committee has approved a set of guidelines that will “help ombudspersons in resisting undue interference in their work”.

The 25 ‘Venice Principles’ were drafted as a response to the committee observing that while most Council of Europe Member States have Ombudsman institutions, some face threats to their independence or effectiveness. These threats include verbal attacks from government members, laws that undermine their effectiveness, and the rejection of reports and rulings.

The report states that the role of the Ombudsman is a key element in a democratic State that respects the rule of law, human rights, good administration and fundamental freedoms. It also points out that the Ombudsman is “an institution taking action independently against maladministration and alleged violations of human rights and fundamental freedoms affecting individuals or legal persons.”

In the Venice Commission’s report on Malta, concerns were raised that the Ombudsman had too weak an institutional position to be able to provide any kind of effective checks and balances.

The Ombudsman should also be committed to call upon parliaments and governments to respect and promote human rights and fundamental freedoms and that they must accept criticism in a transparent and accountable manner, according to the report.

The principles laid out within the report include the mandate of the Ombudsman covering the prevention and correction of maladministration. It should also “cover public administration at all levels” including “the State, municipalities, State bodies and private entities.”

It is also clearly stipulated that the Ombudsman shall not be given any instructions from the authorities and that it must have an enforceable right to demand that officials respond “within a reasonable time set by the Ombudsman”.

Point 19 says that after an investigation has taken place, the Ombudsman should have the power to challenge the constitutionality of laws and regulations or general administrative acts. Point 20 adds that reports “shall be duly taken into account by the authorities”.

 

He added that none of the referrals had been actively considered and that “there has been no response whatsoever” and that the Ombudsman Act is “ineffective” and “needs to be remedied.”

One such report ignored by the government related to the massive number of promotions given to army personnel after the Labour Party won the 2013 general elections. Again, in the lead up to the 2017 snap general election, half of the army was promoted within a 33-day period, the report found.

The Ombudsman referred to the state of the AFM as one where “undue external influence” was prejudicing the rules of due process.

Jeffrey Curmi, a close friend of the Muscats, received an impressive four promotions in as many months taking him to the highest rank in the army – Brigadier. Other examples of suspicious promotions listed in the Ombudsman’s report included a ‘person of trust’ at the Office of the Prime Minister promoted from gunner to Lance Corporal. The Ombudsman found that the process was “vitiated” and “tailor-made to achieve a pre-ordained result”.

Minister for Home Affairs and National Security, Michael Farrugia, said he disagreed with the report in a lengthy response. To date, there has been no announcement of any of the reforms recommended by the Ombudsman being implemented.

PACE urged the Council of Europe’s ministerial body to set up a mechanism that would allow Member States to issue regular reports on the success of implementing the “Venice Principles”.

The matter will be debated by the Assembly in October.

Pieter Omtzigt

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