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. (kifjapplikal-attdwar)

I assent.

(L.S.) G eorge A bela

President

19th November, 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:-

(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.

Article 2 of the principal Act shall be amended as

follows

(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

(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.”.

Immediately after article 17 of the principal Act there

shall be inserted the following new articles

(1) The Ombudsman may appoint

“Appointment,

functions, etc.

Commissioners for Administrative Investigations,

Commissioners hereinafter “the Commissioners”, for specialized areas as

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

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.

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.

(1) The Commissioners appointed under

Organizational

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

shall be incorporated within the Annual Report of the

Ombudsman.

(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.

(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.

(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

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. M ichael F rendo

Speaker

P auline A bela

Clerk to the House of Representatives

€0.75