The state of good governance | Joseph Said Pullicino

Dealing with power, good governance and maladministration – all in a day’s work for Chief Justice emeritus Joseph Said Pullicino as the Ombudsman encounters new stumbling blocks in dealing with a new administration.

Photo: Chris Mangion
Photo: Chris Mangion

The institutional standoff between Parliamentary Ombudsman Joseph Said Pullicino and Home Affairs Minister Manuel Mallia on army promotions is to be treated at a head to head meeting this week.

It is a month since Minister Mallia announced he had requested the meeting with Said Pullicino. It has now been scheduled.

I met Chief Justice Emeritus Said Pullicino amid a cacophony of construction noise related to the expansion of his office to an adjacent block in St Paul Street in Valletta.

Minister Mallia contends that the ombudsman has no jurisdiction over the army. He also contends that this opinion was expressed by the office of the ombudsman in 2003 – two years before Said Pullicino’s appointment, when an investigating officer refused to investigate a complaint lodged by an army officer over promotions before exhausting all other channels.

The ombudsman, who disagrees with the interpretation given in 2003, is adamant in affirming his political independence, arguing that he is simply reiterating what he told the previous government in 2009 when he was faced by complaints from army officers with regard to promotions and he insisted on the ombudsman’s right to investigate complaints by army officers.

“It is simply not true that I treated this issue differently under a different administration… This issue was tackled and resolved in 2009,” Said Pullicino told me.

He explained that under the previous administration, this matter had been the subject of discussion over several months between President George Abela, the Office of the Prime Minister, the Office of the Attorney General, and the army. According to this agreement, an AFM Officer could either lodge a complaint with the ombudsman or refer the complaint to the President of Malta, through the Commander of the Armed Forces and the minister.

“According to this agreement members of the army could choose either to lodge their complaint with the President or the Ombudsman… in a way that if the complaint went to the President officers lost their right to lodge a complaint with the Ombudsman and vice versa”

According to Said Pullicino this written agreement was implemented by both administrations to the extent that one of the recommendations made in an investigation by the ombudsman conducted before the change in government was implemented by the present administration.

“Therefore I strongly deny that we have acted with prejudice towards the new government… What irked me most about this case is the insinuation that this office acted differently under the previous administration…”

Throughout his tenure Said Pullicino always insisted that citizens should not seek recourse to the ombudsman while resorting to other avenues such as the courts. One case in point was his decision to stop the publication of a report by former MEPA auditor Joe Falzon on the approval of a permit for the Sant’ Antnin recycling plant.

Pullicino insists that he remains of the same opinion, which stems from the law regulating his office and his approach to the army investigation is consistent with this approach.

“According to the Act regulating the army the only avenue for army personnel is to lodge complaints with the President and with the commander. This means that the army’s decision will be reviewed first by the commander, then by the minister and finally by the President. Moreover the President can only act according to the advice given by the cabinet… For me this system did not offer an adequate remedy for it did not make sense for me to investigate cases after a decision has already been taken by the President. How can I say that the President of Malta is wrong? That is why I had raised this issue with the previous administration and a solution was found after months of negotiations.”

How does the minister’s refusal to hand over documentation related to the case to the office of the ombudsman reflect on the state of governance in the country?

Said Pullicino limits himself to the legal aspects of the case.

“This is a question of interpretation…There is a conflicting interpretation of the law between us and the administration. I am not saying that an administration cannot change its interpretation but as long as the law remains the same we have to work within it.”

According to the ombudsman this conflict can only be resolved by the courts, which will have to decide which interpretation of the law is correct.

“My only problem is that this may prolong the case to the detriment of the army officials who lodged the complaint… I have to safeguard their interests and that is why I am meeting the minister next week… to try to find a way out of this impasse which would not further delay the investigation.”

This was not the first time Ombudsman Said Pullicino was accused of overstepping his jurisdiction. In December 2012 Said Pullicino, in a letter called on the President and the Chief Justice to relieve judge and Maltese Olympic Committee president Lino Farrugia Sacco of his judicial duties. The latter protested that Said Pullicino had overstepped his jurisdiction.

Said Pullicino insists that this case is of a different nature than that over army procedures, as while on Farrugia Sacco he was expressing an opinion on the way the administration of justice is being perceived by citizens, the army case is related to his institutional duty to investigate complaints by citizens.

“In the case of Farrugia Sacco, I was not conducting any investigation. I simply pointed to the Commission for the Administration of Justice that we were confronted by a situation which impacted negatively on citizens’ perception of justice.”

Said Pullicino remains of the opinion that although the law precludes him from commenting on the actions taken by the judiciary he is free to express an opinion on how the justice system impacts the citizen… But Said Pullicino accepted the verdict of the Commission for the Administration of Justice which decreed that he should have held back from commenting on the case.

“I am not a judge and I submit to the decision and I have stopped commenting on the case…but if in the future I have the chance I would like to take the issue further.”

Said Pullicino has worked under a Nationalist and a Labour administration. He does not see any great differences noting that “governments are always governments… they exercise power”

For the ombudsman the fundamental question remains that of how to exercise this power. But according to the ombudsman it is too early to make any comparisons.

“The previous administration had been in power for 25 years while this one has just started. This means that it is still full of enthusiasm to enact changes in the shortest time possible. A new administration may lack the background about administrative systems and philosophies may differ…but essentially both administrations share the motivation of doing what’s best for citizens… I do not see any big differences.”

Complaints referred to the ombudsman declined drastically after the general election, the ‘Ombusdsplan’ presented by Said Pullicino revealed.

The number of new cases addressed by the parliamentary ombudsman declined by 23% – from 171 between April and August in 2012 to 132 in the same period in 2013.

“It is an established statistical trend that cases referred to the ombudsman decrease both before elections and immediately after elections. This is because before elections the administration in power tries to address complaints in the shortest time possible. After elections people have the expectation that past injustices are addressed by the new administration and therefore people tend to go directly to the source of power. Both trends are understandable.”

But the trend has already been reversed and the number of cases brought to the ombudsman between January and August is similar to that of last year. He also notes an increase in the number of non-written verbal complaints.

Another factor limiting the number of complaints is the appointment of committees in the various ministries to address complaints by citizens. While favouring any mechanisms to address legitimate complaints Said Pullicino warns that these internal mechanisms are not ideal for addressing perceived injustices committed under the previous administration due to the perception that they are assessing the action of a political adversary.

“When you are addressing injustices made under your own administration there is no problem with having such mechanisms but this is not the same when addressing past injustices.”

Said Pullicino notes that this danger was recognised by the Sant administration in 1996 when the newly elected government had the same pressures to address injustices.

“The Prime Minister of that time insisted that such cases should go to the ombudsman... the reason is simple, to correct the mistakes of a previous administration one should not be perceived as its political adversary... Moreover one can end up creating a new injustice in an attempt to redress a past injustice... Not even this office is immune from this but our office is independent and accountable to parliament… That is why I am hurt whenever I am accused of political bias. In 20 years as a judge I have never been accused of political bias.”

The office of the ombudsman has grown over the past years with the appointment of commissioners responsible for health, planning and education.

“This specialisation is very important. I am sure that the commissioner for health is more capable than I to investigate a complaint related to health. The same applies to planning and education...”

In planning, Mepa’s internal auditor, Joe Falzon, had become a household name, mainly due to his frankness and outspoken views.

According to Said Pullicino it is the character of the person appointed to such posts which gives an imprint to the role. He notes that the transition from the former MEPA auditor to the new commissioner, David Pace, was very smooth, noting that cases which had been started by Falzon were handed over to the new commissioner.

“The approach may be different, some may say one is more proactive than the other but my role is not to express judgments but to provide all the necessary support. I do not intervene in any decisions taken by the commissioners. I respect their independence.”

One advantage of the new system is that different commissioners are collaborating in combining their expertise. One such joint investigation is being conducted by the health and the planning commissioners on the issue of sewage spillage on agricultural land.

“We could only do this in such a set up where we can rely on the competence and expertise of different commissioners.”

Said Pullicino also thinks that other areas should fall under the scrutiny of specialised commissioners. Two areas which he identifies are consumer affairs and security forces which include the army, the police and detention services.

The need for these new commissioners was already felt by the previous administration but progress on this matter was interrupted by the general elections. He notes that similar structures of scrutiny exist in other countries and the need is justified by the specific nature of places falling under security forces.

Said Pullicino has also answered a call made by the Office of the Prime Minister to submit suggestions on how to implement the PL’s electoral promise to strengthen the office of the ombudsman. A detailed report has been presented by the Office of the Ombudsman.

Said Pullicino disagrees with the perception that people lodging complaints with the ombudsman do not get any real redress except for moral vindication.

“This is a false perception… Of every 100 cases, 50 complaints are justified and among these 40 cases are redressed… Most of the work we do here is not decisions and reports but negotiating how to seek redress from departments…”

One clear example of this is the damage caused to cars because of the state of public roads.

“We are not entirely satisfied but together with Transport Malta we have created a system through which car owners can seek financial redress… It was very difficult to persuade Transport Malta to acknowledge reasonability… We are not here simply to address complaints but to create structures through which citizens can get redress.”

Said Pullicino’s term will expire in a year and a half. He speaks with the serenity of someone who has given his full contribution to the institution he represents.

“I made a difference because I hailed from a different background and had a different approach than my predecessor… The same would apply to my successor who will bring with him a different approach…But all in all this institution has had a positive impact on the country…It gave the citizen the avenue to direct complaints against the administration.

“One of the greatest satisfactions for citizens who lodge a complaint is that of knowing what is written about them in official files. Even if they are wrong they generally appreciate that we can tell them what happened. This is a good percentage of our work. “