Safeguarding autonomous institutions

The state of any country’s democratic health can be broadly gauged by the degree to which the government is held to account by autonomous institutions, such as the National Audit Office or the office of the Ombudsman.

That said, it is not enough for such institutions to merely exist. They must also be furnished with the tools necessary to carry out their all-important task; and above all, they must be left free and unhindered to investigate any complaints that may arise.

Applied to Malta, this formula immediately encounters obstacles; and a recent ruling by the Civil Court appears to have placed its finger on the very crux of the issue. 

In February this year, Ombudsman Joseph Said Pullicino had filed an application to the Civil Court, complaining that his office was being hindered from investigating complaints filed by army officers about promotions, salaries and pension rights. Several officers complained that they had unfairly lost promotions to other officers who had less experience, fewer qualifications and lower seniority.

The most notorious example was that of Jeffrey Curmi, who rocketed up four ranks – from major to brigadier – in a matter of months.

In his application, the Ombudsman had noted that following his request to the army chief to hand in all relevant documentation, Brig. Curmi had replied that the aggrieved officers had not followed the established procedure of seeking redress through the President.

The Brigadier’s refusal was followed by a similar response from the ministry’s Permanent Secretary Kevin Mahoney.

In a judgment delivered this week, Mr Justice Lawrence Mintoff noted the delicate nature of the situation: a disagreement between two representatives of different organs of the State, on one hand the Ministry for Home Affairs and national security; and on the other hand the Ombudsman, Dr Joseph Said Pullicino.

Significantly, the court held that what was being impugned by these proceedings was not the promotions or appointments that had given rise to the complaint, but the refusal of the home affairs ministry to collaborate with the Ombudsman’s investigation, “first on the pretext that the Army officers who complained had not exhausted their ordinary remedies and subsequently that the Ombudsman lacked the jurisdiction to investigate acts carried out under the sovereign authority of the state”.

Judge Mintoff ruled that in the circumstances, the remedy provided by the Armed Forces Act was not fitting, effective or adequate because “it is not reasonable to expect the complainants to demand a remedy from the very person whose decision may have been the cause of the complaint”.

In his 69-page judgment, the judge confirmed that the Ombudsman did possess jurisdiction to investigate complaints about appointments, promotions, salaries and pension rights in the AFM, also declaring that the decision whether or not to exercise his functions under the Ombudsman Act where other remedies were present, rests solely in the Ombudsman.

It also agreed that having recourse to the President was not considered a reasonable remedy in the circumstances. Judge Mintoff therefore ordered the Ombudsman to continue his investigation and ordered the defendants to collaborate with the investigation.

The implications are significant, in that the case illustrates how Maltese governments tend to side-step the necessary checks and balances required to observe the principle of good governance. While all the remedies are in place on paper, in practice it proved impossible for the Ombudsman to fulfil his role in this case, due to lack of collaboration from the ministry. This in turn points towards an institutional lacuna, enabling the government – despite the existence of autonomous governance watchdogs – to simply deflect complaints by means of procedural loopholes.

Lurking behind this veneer of legalese lies a somewhat cynical attitude by government towards institutions such as the Ombudsman’s office: officially allowing it enough breathing space to survive, but depriving it of the teeth required to actually fulfil its watchdog role. Effectively, the Civil Court’s ruling throws a spanner into the works of this particular strategy, but only insofar as this particular complaint is concerned. 

This is nonetheless a welcome development, as it exposes the modus operandi that had rendered the Ombudsman’s office inoperable. But the ruling, on its own, does not iron out the existing loopholes completely.

More worryingly still, there is evidence of further attempts to undermine the office of the Ombudsman. It is with regret that we note how Budget 2016 actually decreased the Ombudsman’s allocation from the €1.4 million vote in 2014, to just over €1 million today.

Given the sensitive and vital nature of the role it plays, one would expect the office of the Ombudsman to be furnished with more money and resources, not less. Otherwise, one can only conclude that government is deliberately trying to weaken this office, precisely to prevent it from questioning its decisions. 

On a more positive note, Budget 2016 has also increased the allocation to the Auditor-General’s office to €2.9 million. This is particularly important, because the NAO is constantly invoked by politicians to advance partisan interests to investigate various claims of maladministration. 

It is therefore in the interests of healthy democracy, good governance and proper fiscal administration that all such institutions are strengthened… not just the ones that may occasionally serve a partisan interest.