13. Elevating the legal basis for the Ombudsman to the constitution is ‘a welcome step’.
But the government in no way responds to the correct observation made by the Commission that “requests for information (from the Ombudsman to the government) are frequently not complied with” (our emphasis). Nothing in the changes proposed by the government addresses that consideration, which the Commission described as “worrying”.
In fact, the Ombudsman is systematically ignored and undermined by the appointment of ad hoc “injustice redress boards” set up by the government in order to receive grievances by its political supporters and compensated ad hominem, without the bother of impartiality and independence that make the Ombudsman politically inconvenient to the government.
We believe that the “elevation” of the Ombudsman to constitutional status should come with the concomitant ban of ad hoc bodies duplicating the functions of and eroding the Ombudsman’s office.
14. Last year, the Ombudsman complained that “A number of final opinions have been sent to the Speaker of the House of Representatives following negative response from the public authorities to requests to implement our recommendations. We have indicated that to date none of these referrals have been actively considered by the House. There has been no response whatsoever.” The Ombudsman continued that “One can safely conclude that this statutory procedure provided for in the Ombudsman Act, which was meant to be a final safeguard to provide redress against injustice to aggrieved citizens, is proving to be ineffective. This needs to be remedied.”
The government proposes little more than the existing obligation for Parliament to debate the Ombudsman’s annual reports. If there is to be any improvement in this matter, Parliament – or at least a select committee reporting to it – must also be able to review specific cases investigated by the Ombudsman, particularly where the Ombudsman’s recommendations are ignored by the government.
15. The government has also ignored the Commission’s observations with respect to Freedom of Information.
In his Annual Report for 2018, the Ombudsman lamented that “regrettably, the public administration, and this includes public authorities, appears to have adopted a generally negative approach towards its duty to disclose information and the citizen’s right to be informed. The Ombudsman felt and still feels that undue reluctance to provide information to which the public is entitled is not conducive to ensure transparency and accountability as well as the right of enjoyment to a good public administration.”
The government has, as a matter of policy, replied to requests under the Freedom of Information Act only when this was not deemed to be inconvenient to its political interests. The local independent press regularly complains that these requests are all too frequently rejected.
In many respects, the Maltese government does not feel any obligation to be open about the conduct of its affairs and habitually refuses pertinent questions stretching the application of the broad exceptions already provided for in the law.
This too, is an aspect of our supposed democratic design that is no better than a fig leaf, giving the outward impression of open governance.
The President has even refused to publish the letter of resignation handed in by the outgoing Prime Minister, on the grounds that such publication would be problematic for the functioning of the existing government.
Review of these decisions is prohibitively expensive, and in practice useless, as the slow grind of the judicial process ensures that by the time the courts might order the government to reverse its refusal to provide information, the information itself becomes purely a matter of historical interest.