COMMISSIONERS FOR ADMINISTRATIVE INVESTIGATIONS (FUNCTIONS) RULES (functions)

SUBSIDIARY LEGISLATION 385.01

COMMISSIONERS FOR ADMINISTRATIVE

INVESTIGATIONS (FUNCTIONS) RULES

1st August, 2012;

1st November, 2013

LEGAL NOTICE 250 of 2012, as amended by Act II of 2020.

(1) The title of these rules is the Commissioners for

Administrative Investigations (Functions) Rules.

(2)

(a) These rules shall come into force on the 1st of August,

2012, with the exception of the definition of

"education provider" and Part III of these rules.

(b) The definition of "education provider" and Part III of

these rules shall come into force on the 1st November,

2013. Part I - Preliminary Provisions

(1)

In these rules, unless the context otherwise requires -

''the Act'' means the Ombudsman Act;

"the Authority" means the Planning Authority or the

Environment and Resources Authority established by the

Development Planning Act and the Environment Protection Act,

respectively;

"the Commissioner" means a Commissioner for Administrative

Investigations appointed in terms of article 17A of the Act;

*

"education provider" means a public provider of further or

higher education, whether established under the Education Act or

otherwise, and includes the following providers and any company,

institute, centre or any other body established by them

(a) the University of Malta;

(b) the Malta College of Arts, Science and Technology;

(c) the Institution of Tourism Studies; and

(d) a public or private provider acting for or on behalf of a

public provider of further or higher education;

"function" shall have the same meaning as is assigned to it in

article 3(1) of the Interpretation Act;

"further education” shall have the same meaning as is assigned to

it in article 2 of the Act;

" h e a l t h se r v i c e " m e an s a h e a l t h s e r v i c e p r o v i d e d b y t h e

Government, other authority, body or person to whom the Act

*this definition will come into force on 1st November, 2013.

applies, whether such service is preventive or curative, and

includes

(a) a hospital, an establishment and service mentioned in

articles 6 and 16(2) of the Department of Health

(Constitution) Ordinance or any law substituting it

which sets out or defines such health service;

(b) a pharmacy, laboratory service, community health care

service, clinic and any other service that forms part of

a public health service; and

(c) a health service as aforesaid which is provided for or

on behalf of Government through the private sector;

"health care professional" means a person who is authorised to

practise a health care profession regulated in accordance with the

Health Care Professions Act;

"higher education” shall have the same meaning as is assigned to

it in article 2 of the Act.

(2) Unless the context otherwise requires, expressions used in

these rules shall have the same meaning assigned to them in the

Act.

Part II - Functions Applicable to all Commissioners

for Administrative Investigations

(1) All complaints in respect of sectors that fall under the

jurisdiction of a Commissioner for Administrative Investigations

appointed in terms of article 17A of the Act shall be submitted in

the first instance to the Ombudsman.

(2) Where a complaint is addressed to, or received by a

Commissioner without having been submitted to the Ombudsman,

the said Commissioner shall forward such complaint to the

Ombudsman so that the Ombudsman may proceed in accordance

with the provisions of rule 4.

(1) The Ombudsman may assign complaints received in

terms of rule 3 for investigation to a particular Commissioner.

(2) In assigning a complaint as aforesaid, the Ombudsman shall

consider the nature of the complaint and the functions assigned to

Commissioners who are in office from time to time and as provided

for in the Act and in these rules.

(3) In carrying out his duties under sub-rules (1) and (2), the

Ombudsman shall comply with the provisions of the Act and these

rules and any question whether a complaint is duly assigned to a

Commissioner shall be determined by the Ombudsman.

(4) Where the Ombudsman is of the view that a complaint does

not fall within the functions of a Commissioner, the Ombudsman

shall in his discretion either investigate that complaint himself or

else delegate the investigation thereof to another Commissioner.

(5) In the case of complaints which fall within the functions of

two or more Commissioners, the Ombudsman shall decide to which

Commissioner the complaint shall be assigned and, for all intents

and purposes of law, the said Commissioner shall have jurisdiction

to investigate such assigned complaint.

(6) Where a complaint falls within the functions of one

Commissioner but contains elements which go beyond those

functions, the Ombudsman may decide to delegate that part of the

complaint which goes beyond the Commissioner's functions as set

out in these rules to that same Commissioner, or to another

Commissioner, or the Ombudsman may decide to investigate the

complaint himself.

(1) In the exercise of their functions under the Act or any

other law and these rules, it shall be the duty of Commissioners to

comply with any Code of Practice and Procedure which the

Ombudsman may from time to time set out for this purpose.

(2) In determining whether to initiate, continue or discontinue

an investigation under the Act, a Commissioner shall act

autonomously and in accordance with the procedures and processes

laid down by the Act and by these rules.

(3) Where there is no evidence of maladministration, a

Commissioner shall not investigate further a complaint.

(1) Own initiative investigations that fall within the

functions of a Commissioner shall be carried out by such

Commissioner following consultation with the Ombudsman.

(2) In an own initiative investigation due to be carried out by

two or more Commissioners which in substance concerns the same

merits, the Ombudsman shall entrust such investigation to the

Commissioner considered most suited for the purpose of carrying

out such investigation.

A Commissioner to whom a complaint has been assigned

or an investigation has been entrusted may consult another

Commissioner in respect of the particular merits of the matters

being investigated.

Nothing in these rules shall preclude the Ombudsman from

delegating to a Commissioner the investigation of any complaint or

element in a complaint which goes beyond the functions of a

Commissioner as set out in these rules.

(1) If a situation arises where it appears that a

Commissioner may have a conflict of interest in the exercise of the

functions of his office, the Commissioner shall consult with the

Ombudsman who shall provide guidance in accordance with the

Code of Practice and Procedure referred to in rule 5(1).

(2) Where the Ombudsman concludes that such a conflict of

interest exists, he shall invite the Commissioner subject of the

allegation to such a conflict of interest to remedy the conflict.

(3) The Commissioner shall comply with the Ombudsman's

decision. The said decision shall be final.

The term of office of a Commissioner shall be that

provided in articles 5 and 17C of the Act.

Each Commissioner shall have the functions set out in

these rules in addition to those set out in article 13 of the Act, in so

far as the latter provision applies mutatis mutandis to the

Commissioners.

For the purposes of an investigation pursuant to a

complaint, the Commissioner shall have the same powers mutatis

mutandis as the Ombudsman has under article 19 of the Act.

The Commissioner shall not entertain a complaint, unless it

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

complainant first had knowledge of the matters complained about;

b u t t h e C o m m i s s i o n e r m a y, i n h i s d i s c r e t i o n , c o n d u c t a n

investigation of such complaint if he considers that there are

special circumstances which make it proper for him to do so.

A Commissioner shall not replace internal complaints

mechanisms.

Where the Ombudsman has decision-making powers under

this Part, his decision shall be final.

Part III - Commissioner for Education *

A Commissioner for Administrative Investigations

appointed in terms of article 17A(2) of the Act to investigate

matters related to the specialised area of further or higher education

shall be called the "Commissioner for Education".

The Commissioner for Education shall investigate

complaints related to a service provided by an education provider.

(1) The Commissioner for Education shall have no

functions relating to the exercise of academic jurisdiction unless

there is evidence of maladministration.

(2) Unless there is evidence of maladministration, the

Commissioner may not investigate any policy or decision taken by

academic bodies on matters concerning academic provision, course

management issues (such as examination results, degree

classification, grades and grade review, academic supervision of

students, quality and organization of academic teaching, academic

teaching load, decisions by academic panels or appeal bodies, the

nature or content of courses, academic awards, etc.), academic

misconduct, academic integrity, academic study or research

programmes, academic policies and practices, academic regulations

and course requirements.

Part IV - Commissioner for Environment and Planning

A Commissioner for Administrative Investigations

appointed in terms of article 17A(2) of the Act to investigate

matters related to the specialised areas of environment and

development planning shall be called "Commissioner for

Environment and Planning".

*this Part (rules 16, 17 and 18) will come into force on 1st November, 2013.

(l) The Commissioner for Environment and Planning

shall investigate complaints related to the workings of the Planning

Authority and the Environment and Resources Authority in the

exercise of their functions under the Development Planning Act

and the Environment Protection Act, respectively.

(2) Such function shall also extend to those services which the

said Authority outsources and which are provided on its behalf.

Part V - Commissioner for Health

A Commissioner for Administrative Investigations

appointed in terms of article 17A(2) of the Act to investigate

matters related to the specialised area of health shall be called

"Commissioner for Health".

The Commissioner for Health shall investigate complaints

related to a health service.

The Commissioner for Health shall not investigate any

action taken by health care professionals in the exercise of their

medical and clinical judgment for the diagnosis of illness or for the

treatment of patients; nor shall he investigate any technical merits

of decisions taken by health care professionals, unless there is in

either case proof of maladministration by the person providing the

health service in the exercise of his professional competence or

professional discriminatory action.