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The Parliamentary Ombudsman on the complementary relationship of the Courts and the Ombudsman
By the Parliamentary Ombudsman Judge Joseph Zammit McKeon
Published on newsbook.com.mt
Introduction
In societies where the rule of law prevails, the measure of accountable behaviour is not a single-lane road, especially in the case of institutions with constitutional safeguards but with distinct authority. The Courts and the Ombudsman are two of these institutions.
Despite what some non-believers may think, the Courts are a pillar of democratic well-being. They are there to deliver blind justice according to law. They do this not by making law, but by interpreting the law on the basis of facts that have been proven. They decide disputes by imparting executive and binding remedies.
Alongside the Courts stands a guardian of fairness in matters of public administration: the Ombudsman.
Misconception
It is wrong even to think that the Ombudsman competes with the Courts, encroaches upon judicial territory, or offers a parallel system of justice. This misconception represents not understanding what both institutions are there for. The Ombudsman complements the Courts, making them stronger and contributes towards a broader culture of accountability.
Purpose
The Ombudsman as an institution traces its origins to Sweden when in 1809 the Parliamentary Ombudsman was established to oversee the legality and propriety of government administration. The model spread across all continents, adapted to diverse legal systems and constitutional traditions. Whatever the democratic structure of the State, the Ombudsman is independent from the other organs of the State, is accessible free of charge to all persons, and has a mandate to investigate complaints on public maladministration.
Distinct
The Ombudsman is distinct from the Courts.
The Courts are judicial bodies vested with authority to interpret and apply the law. They decide on rights and obligations, through adversarial proceedings. The procedures are formal and governed by rules of evidence. When a law is found to violate the human rights and fundamental freedoms of the person, the Courts have the authority to declare such violation and grant remedies, including pecuniary and non-pecuniary damages. Final judgements of the Courts are binding and enforceable. Access to the Courts involves legal representation, costs, and adherence to procedural requirements.
The Ombudsman does not exercise judicial authority. When investigations are concluded and recommendations are made, these can be substantial in nature and can include changes in legislation, especially where acts of administration of Government under investigation, although legal, result from legislation that is unfair or unjust. Morally strong as they may be, the recommendations are not binding in character. Moral strength remains the benchmark especially were investigations manifest injustice, unnecessary delays, improper conduct, improper discriminatory treatment, abuse of discretion or clear violations of law, including EU legal obligations. The Ombudsman speaks clearly and unequivocally, strongly and in clear terms.
The attention of the Ombudsman is to fairness and good administration: whether an act or practice, even if strictly lawful, was unreasonable, not proportionate, not transparent, or disrespectful. The public service and/or the public administration may act within the letter of the law yet still treat a person unjustly. The Ombudsman provides a forum to address such grievances without requiring a full-scale legal challenge.
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Source: The Parliamentary Ombudsman - Malta
