The case for a judiciary ombudsman

Almost everyone entering our courts needs some type of assistance. Sometimes I wonder what would happen if, upon their arrival, a court employee greeted them by declaring, "Welcome to our courts, where we treat you fairly, carry out justice speedily, and help you to resolve your disputes satisfactorily." This greeting would paraphrase the mission of our courts and announce, literally from the door, a commitment to make that mission a reality. What would be the public's reaction to such a declaration? Incredulity? Suspicion? Relief? Gratitude? Respect?

Based on what we know about public opinion of the justice system, we can imagine a combination of all of these responses. The twenty-first century Maltese public wants a legal system that, instead of merely moving cases along in a conveyor belt-like manner, enables people to participate in a dignified, meaningful and expeditious process that helps to address their problems. Recent innovations in court system design and management, such as problem-solving and user-friendly courts, are helping to achieve these goals.

In response to public opinion and citizen requests, perhaps the time has come for our judiciary to develop an Ombudsman programme to help court users effectively participate in the system and redress problems when they occur.

Such a programme could prove its relevance for courts seeking to be more responsive to the public.

At the moment, under our Ombudsman legislative hierarchy, we have, apart from the Ombudsman himself as the overseeing parliamentary official, a Commissioner for Health, a Commissioner for Environment and Planning, and a Commissioner for Education.

While the PN has called on parliament to set up a parliamentary committee for justice, the President of the Chamber of Advocates, Peter Fenech, referring to the ever-increasing problems and stalemates in our court system, recently publicly mooted whether the time has come to legislate and establish an Ombudsman for the Judiciary with the authority to investigate all complaints, from wherever forthcoming, related to the administrative and judicial functions of our courts.

As the position currently stands, the Ombudsman cannot inquire about or delve into the judiciary, including court decisions and the conduct of court proceedings, or where proceedings are pending in a court or in any tribunal constituted by, or under, any law. Taking this into account, the relationship between the ombudsman and the courts is an important constitutional issue. In its Recommendation 1615, way back in 2003, the Parliamentary Assembly of the Council of Europe stated that the Ombudsman´s competence regarding the courts should be “most strictly limited”.

Furthermore, as stated by the Venice Commission in its former opinions, it is necessary to “exclude the power to intervene in individual cases" and “it is generally understood that the activity of the Ombudsman should not interfere with the judiciary.”

Thus, according to the European standard, the Ombudsman should not have any authority over the jurisprudence of the courts, including administrative and constitutional courts, which are scrutinising laws and administrative decisions. Still, that is not a hard-and-fast rule.

Take the Finnish Ombudsman, for example. The Finnish Ombudsman is traditionally entrusted with several instruments of comprehensive control regarding the work of the courts. Still, even in Finland, the supervision of judges by the Ombudsman seems to be a rather delicate matter.

The European standard that the courts should be excluded from the control exercised by the Ombudsman only applies to the main item of the judicial function: jurisprudence.

Only the judges core activity is regarded as the “judiciary”, the independence of which should strictly be observed by the Ombudsman. By contrast, in several European legal orders, judicial action may be examined by the Ombudsman if it is qualified as “administration of the judiciary” and can consequently be understood as “administration” in a functional way.

However, which specific activities are part of the administration of justice in each case is a difficult issue of classification. It is not uniformly regulated in all legal orders. For the most part, it refers to the administrative conduct of court proceedings, thus to certain procedural acts (e.g., the setting down of a hearing date, the obtaining of expert opinions, executed copies and service of judgments), the execution of judgments as well as the initiation of disciplinary measures against judges. Due to the independence of judges, judicial supervision only provides limited possibilities for influencing maladministration in this branch.

The Ombudsman’s role should be confined to ensuring the procedural efficiency and administrative propriety of the judicial system. So, the Ombudsman can at least undertake general actions and measures to protect against unjust delay in court procedures or from the work of the court services. He may be expressly authorised to observe specific deficiencies in the administration of justice, including delays in proceedings in general, administrative misconduct by judges or judicial officers, delayed service of documents and delays in executing judgments. He may even be authorised to request information about proceedings from the Chief Justice, request periodical reports, register delays or disciplinary procedures, and make recommendations about the functioning of the court system.

A court system's missteps, even minor ones, have significant consequences for the individuals involved and the public's perception of the judicial system. Court users want someone to help them find out where the problem lies and get the case on track.

Yes, there is a dire need for an Office of the Judiciary Ombudsman with four unique characteristics: neutrality, confidentiality, independence and sufficient authority to accomplish its purpose.