OMBUDSMAN ACT (preamble—ombudsmanact)

OMBUDSMAN

CHAPTER 385

OMBUDSMAN ACT

To provide for the appointment of an Ombudsman with power to

investigate the administrative actions taken by or on behalf of Government

and other authorities, and for other purposes connected therewith.

25th July, 1995;

15th November, 1995 *

ACT XXI of 1995 , as amended by Act XVI of 1997 ; Legal Notices

425 of 2007 and 105 of 2008 ; and Acts XVII of 2010 † and XLII of

2020. PRELIMINARY

The short title of this Act is the Ombudsman Act.

(Article 12)

PART A

The President

The House of Representatives

The Cabinet

The Judiciary

Any Tribunal constituted by or under any law

The Commission for the Administration of Justice

The Electoral Commission

The Malta Broadcasting Authority

The Employment Commission

The Permanent Commission against Corruption

The Commission for Investigation of Injustices

The Attorney General in the exercise of the powers referred to in

article 91(3) of the Constitution

Any Counsel or Legal Adviser to the Government acting in such

a capacity

The Auditor General in respect of the functions under articles

108(5) and (8) 108 of the Constitution

The Armed Forces of Malta except as provided in Part B hereof

The Security Service.

PART B

The Public Service Commission

The Armed Forces of Malta in respect only of appointments,

promotion, pay and pension rights of officers and men of the

Force.

(1)

In this Act, unless the context otherwise requires -

"Ombudsman" includes, to the extent of any delegation under

article 27, a person so delegated;

"action" means any action relating to a matter of administration

and includes failure to act;

"public officer" has the same meaning as is assigned to it by

article 124 of the Constitution;

"statutory body" means any corporation or other body corporate

established by law;

"local council" means a local council established under the Local

Government Act.

(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 article 12(1) and (2) as well as

(a) any agency established as provided by article 26 of the

Public Administration Act; other than the Attorney

General in the exercise of powers referred to in article

91(3) 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 article 12(3).

*See article 1(2) of this Act as originally enacted, and Legal Notices 102 and 160 of

1995. †See saving and transitory provision reproduced at the end of this Act.

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APPOINTMENT

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(Article 13)

Matters not subject to Investigation

1. Any matter certified by the Prime Minister to affect the

internal or external security of Malta.

2. Action taken in matters certified by the Minister

responsible for foreign affairs to affect relations or dealings

between the Government of Malta and any other

Government or any international organisation of States or

Governments.

3. Action taken by the Minister responsible for justice under

the Extradition Act.

4. The commencement or conduct of civil or criminal

proceedings before any court of law or any tribunal in

Malta, or of proceedings in respect of military offences

under the Malta Armed Forces Act, or of proceedings

before any international court or tribunal.

5. The exercise of the power of the Prime Minister under

article 515 of the Criminal Code.

6. Any criminal investigation by the Police.

Saving and transitory provision in Act XVII of 2010

6. (1) All persons appointed to an office the appointment whereof

has been made in terms of any law amended by this Act (Act XVII of

2010) 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.

There shall be appointed as an Officer of Parliament a

Commissioner for Administrative Investigations to be called the

Ombudsman, who shall be appointed by the President acting in

accordance with a resolution of the House of Representatives

supported by the votes of not less than two-thirds of all the

members of the House

Provided that when a person who is not a member of the

House of Representatives is elected to be the Speaker of the House

of Representatives he shall not be treated as a member of the House

for the purpose of establishing the majority required by this article.

(1) A person shall not be qualified to be appointed to the

o ff i c e o f O m b u d s m a n i f h e i s a m e m b e r o f t h e H o u s e o f

Representatives, a member of a local council, or if he is a public

officer.

(2) The office of Ombudsman shall be incompatible with the

exercise of any professional, banking, commercial or trade union

activity, or other activity for profit or reward.

(3) The Ombudsman shall not hold any position which is

incompatible with the correct performance of his official duties or

with his impartiality and independence or with public confidence

therein. The Ombudsman shall declare to, and seek the approval of,

the Speaker of the House of Representatives to any positions, trusts

or memberships which the Ombudsman considers do not affect

impartiality, or independence and public confidence, and which it is

desired to retain during the term of office.

(1) Except as otherwise provided in this Act, an

Ombudsman shall hold office for a term of five years, and shall be

eligible for reappointment for one consecutive term of five years.

(2) Unless his office sooner becomes vacant, a person

appointed as an Ombudsman shall hold office until his successor is

appointed.

(3) An Ombudsman may at any time resign his office by

writing addressed to the President.

(1) An Ombudsman may at any time be removed or

suspended from his office by the President, upon an address from

the House of Representatives supported by the votes of not less

than two-thirds of all members of the House, praying for such

removal on the ground of proved inability to perform the functions

of his office (whether arising from infirmity of body or mind or any

other cause) or proved misbehaviour, and the provisions of the

proviso to article 3 shall also apply for the purpose of establishing

the majority required under this subarticle.

(2) At any time when Parliament is not in session, an

Ombudsman may be suspended from his office by the President

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acting in accordance with his own discretion for inability to

perform the functions of his office or misbehaviour proved to the

satisfaction of the President; but any such suspension shall not

continue in force beyond two months after the beginning of the

next ensuing session of Parliament.

(1) If an Ombudsman dies, or resigns from office, or

vacates his office or is removed from office, the vacancy thereby

created shall be filled in accordance with this article.

(2) If the vacancy in the office of an Ombudsman occurs at any

time while Parliament is in session, it shall be filled by the

appointment of the Ombudsman by the President on the

recommendation of the House of Representatives in accordance

with article 3

Provided that if the vacancy occurs less than two months

before the close of that session and no such recommendation is

made in that session, the provisions of subarticle (3) shall apply as

if the vacancy had occurred while Parliament was not in session.

(3) If any such vacancy occurs at any time while Parliament is

not in session, the President shall appoint an Ombudsman to fill the

vacancy, and the person so appointed shall, unless his office sooner

becomes vacant, hold office until an Ombudsman is appointed in

accordance with article 3.

(1)

The President may -

(a) at any time during the illness or absence of the

Ombudsman, or

(b) for any other temporary purpose where the

Ombudsman considers it necessary not to conduct an

investigation himself because of such circumstances,

that were he a judge of the superior courts, he would

abstain,

appoint an Ombudsman to hold office in accordance with this

article, and such an Ombudsman shall be paid such salary, not

exceeding the amount payable to the Ombudsman, as the President

thinks fit.

(2) The power conferred by article (1)(b) shall be exercised

only on a certificate signed by the Ombudsman to the effect that, in

his opinion, it is necessary for the due conduct of the business of

the Ombudsman under this Act that an additional Ombudsman

should be temporarily appointed.

(3) An Ombudsman appointed under this article on account of

the illness or absence of the Ombudsman shall hold office until the

r e s u m p t i o n o f o ff i c e o f t h e O m b u d s m a n , a n d e v e r y o t h e r

Ombudsman appointed for a temporary purpose shall hold office

until he performs the function assigned to him.

(4)

(a) A person shall not be qualified to be approved under

this article if he is disqualified to be appointed to the

Office of Ombudsman under article 4(1).

(b) The provisions of articles 4(2) and (3) shall apply to a

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person appointed under this article

Provided that a person appointed under this article may

exercise any activity for profit or reward which is not in any way

incompatible with the provisions of article 4(3).

(1) Before entering upon the exercise of the duties of his

office an Ombudsman shall take an oath that he will faithfully and

impartially perform the duties of his office, and that he will not,

except in accordance with article 21, divulge any information

acquired by him under this Act.

(2) The oath shall be administered by the Speaker of the House

of Representatives.

(1) Subject to the provisions of the Constitution and of

any other enactment applicable thereto, and subject to the

provisions of this article the Ombudsman may appoint such officers

and employees as may be necessary for the carrying out of the

functions, powers and duties under this Act. This power to appoint

includes approval to the numbers of persons that may be appointed

under this article whether generally or in respect of any specific

duties or classes of duties, their salaries and conditions of

appointment.

(2) The Ombudsman may in the conduct of an investigation

engage, in a consultative capacity, any person whose particular

expertise is essential to the effectiveness of the investigation

Provided that if the consultant required is a public officer

the Prime Minister may, at the request of the Ombudsman,

designate the public officer to assist.

(3) Subject to the provisions of this article the Ombudsman

shall be responsible for approving the level of capital equipment,

furnishings, materials, and administrative activities for the carrying

out of the functions, powers and duties under this Act.

(4) The finance required for the Ombudsman’s salary and

allowances, and for the resources described in subarticles (1), (2)

and (3) shall not exceed a maximum amount indicated in an

Ombudsplan approved by the House of Representatives and shall

b e a c h a rg e o n t h e C o n s o l i d a t e d F u n d w i t h o u t a n y f u r t h e r

appropriation other than this Act

Provided that the Ombudsman shall present to the House by

the l5th day of September of each year, an Ombudsplan which will

indicate the ensuing year’s activities.

(5) The salary, allowances and expenses payable to the

Ombudsman shall be at rates equivalent to those applicable to a

judge of the superior courts. The salary is not to be diminished

during the continuance of the Ombudsman’s appointment.

(6) The officers and employees appointed in accordance with

subarticle (1) shall before entering into the exercise of their office

or employment take an oath that they will faithfully and impartially

perform the duties of their office or employment, and that they will

not, except in accordance with article 21, divulge any information

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acquired by them under this Act. Such oath shall be administered

by the Ombudsman.

The accounts of the office of the Ombudsman shall be

audited by the Auditor General and the Public Finance

Management Act shall apply.

FUNCTIONS

(1) Subject to the provisions of this article, this Act

applies to -

(a) the

Government,

including

any

government

department or other authority of the Government, any

Minister or Parliamentary Secretary, any public officer

and any member or servant of an authority as

aforesaid;

(b) any statutory body, and any partnership or other body

in which the Government or any one or more of the

said bodies aforesaid or any combination thereof has a

controlling interest or over which it has effective

control, including any director, member, manager or

other officer of such body or partnership or of its

controlling body (hereinafter collectively referred to

as organisation); and

(c) local councils and any committee thereof, mayors,

councillors and members of staff of all local councils.

(2) This Act applies as aforesaid even when the persons to

whom it applies have acted in accordance with recommendations

received or after holding consultations according to law or after

observing other legal requirements.

(3)

(a) This Act does not apply to the persons or bodies listed

in Part A of the First Schedule to this Act.

(b) This Act shall not apply to the bodies listed in Part B

of the First Schedule to this Act, unless proof to the

satisfaction of the Ombudsman is produced showing

that all available means of redress have been

exhausted.

(4)

(a) The Prime Minister may by order in the Gazette

amend, vary or substitute the lists in Part A and Part B

of the First Schedule to this Act.

(b) No order made under this subarticle shall have effect

unless it has received the prior approval of the House

of Representatives signified by resolution.

(1) Subject to the provisions of this article, it shall be the

function of the Ombudsman to investigate any action taken by or on

behalf of the Government, or other authority, body or person to

whom this Act applies, being action taken in the exercise of their

administrative functions.

(2) The Ombudsman may conduct any such investigation on his

initiative or on the written complaint of any person having an

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interest who claims to have been aggrieved by any action as

aforesaid, or where the person aggrieved has died or is for any

reason unable to act for himself, of his heir or representative.

(3) Notwithstanding the provision of subarticle (1), the

Ombudsman may, if he considers it desirable so to do, decline to

exercise his power under this article in any case where adequate

means of redress are or have been available to the complainant

under any other law

Provided that the Ombudsman may conduct an

investigation if satisfied that in the particular circumstances it is

not reasonable to expect the complainant to resort or have resorted

to such means of redress.

(4) Without limiting the foregoing provisions of this article, it

is hereby declared that any Committee of the House of

Representatives may at any time refer to the Ombudsman, any

petition that is before that Committee for consideration, or any

matter to which the petition relates. In any such case the

Ombudsman shall, subject t o any special directions of the

Committee, investigate the matters so referred, so far as they are

within his jurisdiction, and make such report to the Committee as

he thinks fit. Nothing in article 17, or article 22, or article 23 of this

Act shall apply in respect of any investigation or report made under

this subarticle.

(5) The Ombudsman shall not proceed to investigate any

complaint on the subject-matter of which proceedings are pending

in a court or other tribunal, and shall suspend the investigation if

any interested person shall file a demand before any court or other

tribunal on the subject-matter of the investigation; provided that an

investigation may be proceeded with in respect of problems of

general interest contained in the complaint.

(6) Subject to the provisions of article 12(3) without limiting

the foregoing provisions of this article, the Prime Minister may at

any time refer to the Ombudsman for investigation and report any

matter, other than a matter which is subject to judicial proceeding,

which the Prime Minister considers should be investigated by the

Ombudsman. Where, pursuant to this subarticle, a matter is

investigated by the Ombudsman, he shall report thereon to the

Prime Minister, and may thereafter make such report to Parliament

on the matter as he thinks fit.

(7) The Ombudsman shall not conduct an investigation under

this Act in respect of such action or matter as is described in the

Second Schedule to this Act.

(8) In exercise of his functions the Ombudsman shall not be

subject to the direction or control of any other person or authority.

(1) Nothing in article 13 of this Act shall permit the

Ombudsman to investigate a complaint on an act which occurred

earlier than six months prior to the date on which this Act comes

into force.

(2)

A complaint shall not be entertained under this Act unless it

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is made not later than six months from the day on which the

complainant first had knowledge of the matters complained about;

but the Ombudsman may conduct an investigation pursuant to a

complaint not made within that period if he considers that there are

special circumstances which make it proper to do so.

(1) The House of Representatives may by resolution from

time to time if it thinks fit, make general rules for the guidance of

the Ombudsman, in the exercise of his functions under this Act, and

may at any time in like manner revoke or vary any such rules.

(2) All rules made under this article shall be printed and

published in the Gazette.

(1) Every complaint to the Ombudsman shall be made in

writing or orally. A complaint made orally shall be put in writing as

soon as practical.

(2) Notwithstanding any provision in any enactment, where any

letter appearing to be written by a person in custody or on a charge

or after conviction of any offence, or by any patient of any hospital

within the meaning of the Mental Health Act, is addressed to the

Ombudsman, it shall be immediately forwarded, unopened, to the

Ombudsman by the person for the time being in charge of the place

or institution where the writer of the letter is detained or of which

he is a patient. Any letter written by the Ombudsman to a person or

patient so described shall be immediately forwarded, unopened, to

such person or patient by the person for the time being in charge of

the place or institution.

(1) If upon a complaint, or in the course of an

investigation of a complaint it appears to the Ombudsman that,

having regard to all the circumstances of the case, any

investigation, or further investigation is unnecessary, he may refuse

to investigate, or investigate further any such complaint.

(2) Without limiting the generality of the powers conferred on

the Ombudsman by this Act, the Ombudsman may in his discretion

decide not to investigate, or, as the case may require, not to

investigate further a complaint if in his opinion -

(a) the subject-matter of the complaint is trivial; or

(b) the complaint is frivolous or vexatious or is not made

in good faith; or

(c) the complainant has not a sufficient personal interest

in the subject-matter of the complaint.

(3) In any case where an Ombudsman decides not to investigate

or make further investigation of a complaint he shall inform the

complainant of that decision, and shall state his reasons therefor.

(1) The Ombudsman may appoint Commissioners for

Administrative Investigations, hereinafter "the Commissioners",

for specialized areas as may be determined by him, with the

concurrence of the Prime Minister. The Commissioners shall be

Officers of Parliament and shall be appointed by the Ombudsman

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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 article 17A(1)

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

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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 article 17A(5).

(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)

shall mutatis mutandis apply to the Commissioners appointed under

article 17A(1).

(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 article 17A(1)

shall draw up an annual report which shall be published as part of

the Ombudsman’s annual report referred to in article 29.

(1) Except where a Commissioner appointed in terms of

article 17A(1) 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

G o v e r n m e n t , o r b y t h e s a i d a u t h o r i t y, b o d y o r p e r s o n , t h e

Commissioner shall inform accordingly the Ombudsman, the

c o m p e t e n t M i n i s t e r a n d t h e c o m p l a i n a n t , i f a n y, w i t h i n 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.

PROCEEDINGS

(1) Before investigating any matter under this Act the

Ombudsman shall inform the head of department concerned, or, as

the case may require, the chief executive officer of the organisation

concerned, or the mayor of the local council concerned, of his

intention to make the investigation.

(2) Every investigation by the Ombudsman under this Act shall

be conducted in private.

(3) The Ombudsman may hear or obtain information from such

persons as he thinks fit, and may make such enquiries as he thinks

fit. It shall not be necessary for the Ombudsman to hold any

hearing, and no person shall be entitled as of right to be heard by

the Ombudsman

Provided that if at any time during the course of an

investigation it appears to the Ombudsman that there may be

sufficient grounds for his making any report or recommendation

that may adversely affect any department, organisation, local

council or person, he shall give to that department, organisation,

local council or person an opportunity to be heard.

(4) In the case of an investigation relating to a department,

organisation or local council, the Ombudsman may in his discretion

at any time during or after the investigation consult a Minister,

head of department, chief executive, mayor or any other person

who is concerned in the matter of the investigation, and the

Ombudsman shall consult any Minister, head of department, chief

executive, mayor or any other person who so requests or to whom a

recommendation which is the subject of the investigation has been

made, after the Ombudsman had made the investigation and before

he has formed a final opinion on any of the matters referred to in

articles 22(1) and (2).

(5) If, during or after any investigation, the Ombudsman is of

the opinion that there is substantial evidence of any significant

breach of duty or misconduct on the part of any officer or employee

of any department, organisation or local council, he shall refer the

matter to the appropriate authority including the Police

Provided that the Ombudsman may continue further with

his investigation after having referred the matter as aforesaid.

(6) If during or after any investigation the Ombudsman is of the

opinion that there is evidence of any corrupt practice as defined in the

Permanent Commission Against Corruption Act, the Ombudsman

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may refer his findings directly to the Attorney General.

(7) Subject to the provisions of this Act and of any rules made

thereunder, the Ombudsman may regulate his procedure in such

manner as he thinks fit.

(1) Subject to the provisions of this article and of article

20 of this Act, the Ombudsman may from time to time require any

person who in his opinion is able to give any information relating

to any matter that is being investigated by the Ombudsman to

furnish to him any such information, and to produce any documents

or papers or things which in the Ombudsman’s opinion relate to any

such matter as aforesaid and which may be in the possession or

under the control of that person. This subarticle shall apply whether

or not the person is an officer, employee, or member of any

department, organisation or local council, and whether or not such

documents, papers, or things are in the custody or under the control

of any department, organisation or local council.

(2) The Ombudsman shall have power to summon witnesses

and to administer an oath to any witness and to any person

concerned in the investigation, and require them to give evidence.

(3) Any person summoned as aforesaid who refuses, or without

sufficient cause fails, to attend at the time and place mentioned in

the summons, or refuses, without sufficient cause to answer or to

answer fully and satisfactorily, to the best of his knowledge and

belief all questions put to him by the Ombudsman, or refuses or

fails, without sufficient cause, to produce any document he was

required to produce by the Ombudsman shall be guilty of an

offence and shall be liable on conviction to a fine (multa) not

exceeding one thousand and one hundred and sixty euro (1,160) or

to imprisonment not exceeding three months, or to both such fine

and imprisonment

Provided that, without prejudice to the generality of the

provisions of subarticle (2), no person giving evidence before the

Ombudsman may be compelled to answer any question which tends

to expose him to any criminal prosecution, and every such person

shall, in respect of any evidence given by him before the

Ombudsman, be entitled to the same privileges to which a witness

giving evidence before a court of law is entitled.

(1) Where the Prime Minister certifies that the giving of

any information or the answering of any question or the production

of any thing, paper or other document -

(a) affects the security or defence of Malta or relations or

dealings between the Government of Malta and any

other Government or any international organisation of

States or Governments; or

(b) is likely to damage seriously the national economy; or

(c) involves the disclosure of the deliberations or

proceedings of Cabinet or any committee of Cabinet;

or

(d) prejudices the investigation or detection of offences,

OMBUDSMAN

the Ombudsman shall not require the information or answer to be

given or, as the case may be, the thing, paper or other document to

be produced.

(2) Subject to the provisions of subarticle (1), the rule of law

which authorises or requires the withholding of any document,

thing, or paper, or the refusal to answer any question, on the ground

that the disclosure of the document, thing or paper or the answering

of the question would be injurious to the public interest shall not

apply in respect of any investigation by or proceedings before the

Ombudsman.

(1) Information obtained by the Ombudsman and every

person holding any office, appointment or designation under the

Ombudsman, in the course of or for the purpose of an investigation

under this Act, shall not be disclosed except for the purposes of the

investigation and of any report to be made thereon under this Act,

or for the purpose of any proceedings relating to an offence under

this Act, and the Ombudsman and members of his staff shall not be

called upon to give evidence in any proceedings, other than such as

aforesaid, of matters coming to their knowledge in the course of an

investigation under this Act.

(2) Article 133 of the Criminal Code shall apply to and in

relation to the Ombudsman and his staff as they apply to or in

relation to a public officer or servant referred to in article 133 of

the Criminal Code.

PROCEDURE AFTER INVESTIGATION

(1) The provisions of this article shall apply in every case

where, after making any investigation under this Act, the

Ombudsman is of opinion that the decision, recommendation, act or

omission which was the subject-matter of the investigation -

(a) appears to have been contrary to law; or

(b) was unreasonable, unjust, oppressive, or improperly

discriminatory, or was in accordance with a law or a

practice that is or may be unreasonable, unjust,

oppressive, or improperly discriminatory; or

(c) was based wholly or partly on a mistake of law or fact;

or

(d) was wrong.

(2) The provisions of this article shall also apply in any case

where the Ombudsman is of opinion that in the making of the

decision or recommendation, or in the doing or omission of the act,

a discretionary power has been exercised for an improper purpose

or on irrelevant grounds or on the taking into account of irrelevant

considerations, or that, in the case of a decision made in the

exercise of any discretionary power, reasons should have been

given for the decision.

(3) If in any case to which this article applies the Ombudsman

is of opinion -

OMBUDSMAN

(a) that the matter should be referred to the appropriate

authority for further consideration; or

(b) that the omission should be rectified; or

(c) that the decision should be cancelled or varied; or

(d) that any practice on which the decision,

recommendation, act, or omission was based should be

altered; or

(e) that any law on which the decision, recommendation,

act, or omission was based should be reconsidered; or

(f) that reasons should have been given for the decision;

or

(g) that any other steps should be taken,

the Ombudsman shall report his opinion, and his reasons therefor,

to the appropriate department, organisation or local council, and

may make such recommendations as he thinks fit. In any such case

he may request the department, organisation or local council to

notify him, within a specified time, of the steps (if any) that it

proposes to take to give effect to his recommendations. The

Ombudsman shall also, in the case of an investigation send a copy

of his report or recommendations to the Minister concerned and to

the mayor in the case relating to a local council.

(4) If within a reasonable time after the report is made no

action is taken which seems to the Ombudsman to be adequate and

appropriate, the Ombudsman, in his discretion, after considering

the comments (if any) made by or on behalf of any department,

organisation or local council affected, may send a copy of the

report and recommendations to the Prime Minister, and may

thereafter make such report to the House of Representatives on the

matter as he thinks fit.

(5) The Ombudsman shall attach to every report sent under

subarticle (4) a copy of any comments made by or on behalf of the

department, organisation or local council affected.

(6) Notwithstanding anything in this article, the Ombudsman

shall not, in any report made under this Act, make any comment

that is adverse to any person unless the person has been given an

opportunity to be heard.

(1) Where, on any investigation following a complaint, the

Ombudsman makes a recommendation under article 22(3) and no

action which seems to the Ombudsman to be adequate and

appropriate is taken thereon within a reasonable time, the

Ombudsman shall inform the complainant of his recommendation,

and may make such comments on the matter as he thinks fit.

(2) The Ombudsman shall in any case inform the complainant,

in such manner and at such time as he thinks proper, of the result of

the investigation.

Except on the ground of lack of jurisdiction, no proceeding

or recommendation of the Ombudsman may be challenged in any

court.

OMBUDSMAN

(1) No proceedings, civil or criminal, shall lie against the

Ombudsman or against any member of his staff for anything he

may do or report or say in the course of the exercise or intended

exercise of his functions under this Act unless it is shown that he

acted in bad faith.

(2) The Ombudsman and such persons as aforesaid, shall not be

called to give evidence in any court, or in any proceedings of a

judicial nature, in respect of anything coming to his knowledge in

the exercise of his functions under this Act.

(3) Anything said or any information supplied or any

document, paper or thing produced by any person in the course of

any inquiry by or proceedings before the Ombudsman under this

Act shall be privileged in the same manner as if the inquiry or

proceedings were proceedings in a court.

MISCELLANEOUS

(1) For the purposes of this Act, but subject to the

provisions of this article, an Ombudsman may at any time enter any

premises occupied by any of the departments or organisations to

which this Act applies as specified in article 12, and inspect the

premises and, subject to the provisions of articles 19 and 20, carry

out therein any investigation that is within his jurisdiction.

(2) Before entering any such premises an Ombudsman shall

notify the permanent head of the department or, as the case may

require, the principal administrative officer of the organisation by

which the premises are occupied.

(1) The Ombudsman may delegate in writing to any

person holding any office under him any of his powers under this

Act, except this power of delegation.

(2) A delegation of functions under this Act shall be without

prejudice to the exercise of those functions by the Ombudsman, and

shall be revocable by the Ombudsman at will.

(1) No person other than the Ombudsman appointed under

this Act, may use the name "Ombudsman" in connection with any

business, trade or occupation, or the provision of any service,

whether for payment or otherwise, or hold himself out to be an

Ombudsman except with the written consent of the Ombudsman

appointed under this Act.

(2) A person who contravenes subarticle (1) shall be guilty of

an offence and shall on conviction be liable to a fine (multa) not

exceeding two hundred and thirty euro (230).

(1) The Ombudsman shall annually or as frequently as he

may deem expedient report to the House of Representatives on the

performance of his functions under this Act to the Speaker who

shall instruct the Leader of the House to lay a copy on the Table of

the House at the first available opportunity.The said report shall, as

soon as possible, be discussed during a dedicated parliamentary

sitting.

OMBUDSMAN

(2) The Ombudsman may from time to time in the public

interest, or in the interest of any person, or department, or

organisation publish reports relating generally to the exercise of his

functions under this Act, or reports relating to any particular case

or cases investigated. Such reports may be published whether or not

the matters dealt with in the report have been the subject of a report

to the House of Representatives under this Act.