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The Ombudsman (Amendment) Act (Act No. Xvii Of 2010)

ACT No. XVII of 2010

AN ACT to empower the Ombudsman to provide administrative and investigative services to specialised Commissioners for Administrative Investigations, and to designate such Commissioners as Officers of Parliament.

BE IT ENACTED by the President, by and with the advice and consent of the House of Representatives in this present Parliament assembly, and by authority of the same, as follows:-

Short title and commencement. Cap. 385.

Amendment of article

2 of the principal Act.

1. (1) The short title of this Act is the Ombudsman (Amendment) Act, 2010, and it shall be read and construed as one with the Ombudsman Act, hereinafter referred to as “the principal Act”.

(2) This Act shall come into force on such date as the Prime Minister may by notice in the Gazette establish, and different dates may be so established for different provisions or different purposes of this Act.
(3) A notice under sub-article (2) may make such transitional provisions as appear to the Prime Minister to be necessary or expedient in connection with the provisions thereby brought into force.

2. Article 2 of the principal Act shall be amended as follows:

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(a) the present provision thereof shall be renumbered as sub-article (1) thereof;
(b) immediately after sub-article (1) thereof as renumbered, there shall be added the following new sub- article:
“(2) For the purposes of this Act:
“the Government, or other authority, body or person to whom this Act applies”, wherever it occurs, means the entities referred to in sub-articles (1) and (2) of article 12 of this Act as well as:
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Cap. 497.

(a) any agency established as provided by article 36 of the Public Administration Act; other than the Attorney General in the exercise of powers referred to in sub-article (3) of article 91 of the Constitution;
(b) any foundation established by the Government or by any statutory body and any partnership or other body referred to in article
12(b);
(c) chairmen and members of boards, committees, commissions and other decision making bodies, whether established by law or by an administrative act, which can take decisions affecting any member of the public and which do not fall under sub-article (3) of article 12.”.

3. Immediately after article 17 of the principal Act there shall be inserted the following new articles:

Addition of new articles 17A

to 17D to the principal

Act.

“Appointment, functions, etc. of

17A. (1) The Ombudsman may appoint
Commissioners for Administrative Investigations,

Commissioners hereinafter “the Commissioners”, for specialized areas as

for

Administrative may be determined by him, with the concurrence of the

Investigations. Prime Minister. The Commissioners shall be Officers of

Parliament and shall be appointed by the Ombudsman in accordance with the following provisions of this article.
(2) The Ombudsman shall appoint as
Commissioner such person as the Prime Minister and
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the Leader of the Opposition shall jointly communicate to him in writing as the person to be appointed to the post. In default of receipt of such communication within three weeks from the date when the Ombudsman informs in writing both the Prime Minister and the Leader of the Opposition of the decision to appoint such Commissioner or from the date when a vacancy arises in any such office, the appointment of Commissioner shall be made by the Ombudsman acting in accordance with his own deliberate judgment:
Provided that the term of office of all persons appointed to such office shall lapse on the same date, and any person filling any vacancy which occurs during such term shall serve until the expiration of the term of office of his predecessor and the term of office of any new appointments shall lapse on the same date as that of the term of office of all other persons appointed under this article.
(3) The Commissioners shall be so appointed from amongst persons knowledgeable and well versed in those specialized areas for which they shall be appointed to investigate. Notice of their respective appointments, dates of appointment and dates on which they shall vacate their office shall be published in the Gazette.
(4) The Commissioners shall be paid such salary and allowances, which shall be a charge on the Consolidated Fund, as may be determined by the Ombudsman, with the concurrence of the Prime Minister. Such salary and allowances shall be published by way of Order in the Gazette.
(5) The functions of the Commissioners shall be approved by the Ombudsman after consultation with the Prime Minister and shall be published by way of rules in the Gazette.
(6) The Commissioners shall communicate their report to the Government, or other authority, body or person to whom this Act applies and to the complainant, if any. Before communicating any report as aforesaid a Commissioner may seek the Ombudsman’s opinion on any matter of substance or procedure thereon.

Organizational set-up.

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The Ombudsman, may establish a list of those subject matters upon which the Commissioners have received his opinion.
(7) Saving the provisions of article 17D, the Ombudsman shall not accept complaints asking him to review the report of any Commissioner once such report has been communicated to the Government, or other authority, body or person to whom this Act applies and to the complainant, if any, except in cases where the Ombudsman considers that there are issues relating to breach of the rules of natural justice.
17B. (1) The Commissioners appointed under sub-article (1) of article 17A shall, whilst retaining their full autonomy and independence in the exercise of their respective functions, utilize the administrative and investigative services of the Office of the Ombudsman. The Ombudsman shall not review any final report submitted by a Commissioner except in cases where the Ombudsman feels that there are points of law or principles of equity or natural justice involved.
(2) It shall be the duty of the Ombudsman to ensure that the Commissioners are provided with such administrative and investigative services to enable them to carry out their respective duties in terms of such functions as may be assigned to them in terms of sub- article (5) of article 17A.
(3) The Commissioners shall enjoy full immunity from any disciplinary, administrative or civil action for any act arising from the execution of their official duties.
(4) The provisions of this Act applicable to the Office of the Ombudsman shall mutatis mutandis apply to the Commissioners acting in exercise of their duties under this Act so that the investigative procedure shall be as homogeneous and uniform as possible. The Commissioners shall have full access to all information relating to the investigation.
(5) A Commissioner appointed under this article shall prepare and submit an Annual Report which
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shall be incorporated within the Annual Report of the
Ombudsman.

Application of the Ombudsman Act to

the Commis- sioners.

Review of recommen- dations

made by the Commis- sioners.

17C. (1) The provisions of articles 4 to 7, 9, 13 to 28 and 29(2) of this Act shall mutatis mutandis apply to the Commissioners appointed under sub-article (1) of article 17A of the Act.
(2) The Ombudsman may appoint a temporary Commissioner in the same circumstances that the President may make a temporary appointment of an Ombudsman under article 8 and the provisions of that article shall mutatis mutandis apply to such a temporary appointment as if for the word “President” there were written the word “Ombudsman” and for the word “Ombudsman” there were written the word “Commissioner”. Notice of such temporary appointment shall be published in the Gazette.
(3) Each Commissioner appointed in terms of sub-article (1) of article 17A of this Act shall draw up an annual report which shall be published as part of the Ombudsman’s annual report referred to in article 29 of this Act.
17D. (1) Except where a Commissioner appointed in terms of sub-article (1) of article 17A has not drawn up a report, or where although such a report has been drawn up it contains no recommendations, the said Commissioner shall send his report to the Government or other authority, body or person to whom this Act applies, to the Ombudsman and to the competent Minister. Where no action as recommended by the Commissioner is taken within a reasonable time from the date that the Commissioner has sent his report to the Government, or to the said authority, body or person, or where the Commissioner is informed that no action will be taken or that only partial action will be taken on his recommendations by the Government, or by the said authority, body or person, the Commissioner shall inform accordingly the Ombudsman, the competent Minister and the complainant, if any, within a reasonable time of receipt of the aforesaid report.

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(2) Where the Commissioner has informed a complainant that the Government, authority, body or person aforesaid will not be implementing the Commissioner’s recommendation in his report, or will be implementing his recommendations only partially, or where no reply has been received by the Ombudsman within such time indicated by the Commissioner in his report, the complainant may request the Ombudsman to review that Commissioner’s report and the objection thereto of the Government, authority, body or person as aforesaid.

4. Sub-articles (15) and (16) of article 74 of the Education

Act shall be deleted.

5. The definition of “Audit Officer” in article 2 and article

17C of the Development Planning Act shall be deleted.

6. (1) All persons appointed to an office the appointment whereof has been made in terms of any law amended by this Act shall continue to carry out their lawful duties in terms of their respective appointment until such time as their appointment is confirmed, extended, revoked or terminated in terms of the provisions of the law (as amended by this Act) establishing their respective office.

(2) All complaints pending before those persons who were competent, prior to the coming into force of this Act, to investigate those complaints shall, subject to the provisions of sub-article (1) of this article, continue to be investigated by those persons who have been hitherto appointed under any law amended by this Act to investigate such complaints; and the Prime Minister may, after consultation with the Ombudsman, establish different dates for the entry into force of different provisions of this Act with regard to the different persons referred to in sub-article (1) of this article.
(3) Nothing in the preceding provisions of this article shall invalidate any procedure whether written or oral which may have taken place before the coming into force of this Act and which was valid according to the law in force at the time it took place.
(4) Without prejudice to the generality of the foregoing provisions of this article, when a new office of Commissioner is
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Consequential

amendment

to the Education Act. Cap. 327.

Consequential

amendment

to the Development

Planning Act. Cap. 356.

Saving and transitory provision.

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established in terms of the Ombudsman Act the Commissioner appointed to that office shall take cognizance of those complaints pending before the Ombudsman which the Ombudsman may assign to such Commissioner; and the said Commissioner shall continue to investigate those complaints irrespective of the stage of investigation those complaints might have reached.
Passed by the House of Representatives at Sitting No. 284 of 15th November,
2010.
MichAel Frendo

Speaker

PAuline AbelA

Clerk to the House of Representatives

Ippubblikat mid-Dipartiment tal-Informazzjoni (doi.gov.mt) — Valletta — Published by the Department of Information (doi.gov.mt) — Valletta

Mitbugħ fl-Istamperija tal-Gvern fuq karta riċiklata — Printed at the Government Printing Press on recycled paper <.. image removed ..>

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