The Venice Commission and the Ombudsman – Part 2

The Venice Commission and the Ombudsman – Part 2

Published September 28, 2026

by the Parliamentary Ombudsman, Judge Joseph Zammit McKeon

Introduction to Part II

In the first part of this article, the Parliamentary Ombudsman examined the impact of the Opinions of the Venice Commission on the constitutional position of the Office of the Ombudsman, including its role within the Judicial Appointments Committee and the strengthening of the Office under Article 64A of the Constitution.

This second part continues that examination, focusing on the safeguards surrounding the appointment and removal of the Ombudsman, the constitutional recognition of the investigative function, and the further legislative changes that followed the Venice Commission’s Opinions.

Appointment

The Constitution itself now provides that the Ombudsman is appointed by the President following a Resolution voted by not less than two-thirds of all members of the House of Representatives. It also provides for a continuity or “incumbency” mechanism in the sense that if the necessary two-thirds vote on the Resolution is not obtained, the incumbent Ombudsman remains in office until the necessary majority is reached. Although the provision did not create a new investigative function, it materially strengthened the institutional independence and security of tenure of the Ombudsman.

Removal or suspension

Act XLII of 2020 introduced a new provision within Art 64A whereby the removal or suspension of the Ombudsman required an address from Parliament supported by at least two-thirds of all MPs, based upon proved inability to perform the functions of office or proved misbehavior. Therefore, the safeguard that was already present in the Ombudsman Act 1995 was incorporated into the Constitution.  The Venice Commission welcomed the inclusion of the rule as it was consistent with Venice Principles 6 and 11.

Investigations

Investigations can be conducted by the Ombudsman on his own initiative or on the written complaint of any person having an interest who claims to have been aggrieved by any action of Government.  This investigative role was placed directly in Art 64A of the Constitution by means of Act XLII of 2020. The Venice Commission welcomed this development as the core investigation role of the Office was elevated from a function of ordinary law to a constitutional level more so because that recognition was consistent with Principle 14 of the Venice Principles.

Chapter 385

The changes to Art 29 of the Ombudsman Act 1995 that were brought about by Act XLII of 2020 are traceable to the findings of the Venice Commission of 2018 and 2020.

The Commission had insisted that the Ombudsman should be placed in a position, in matters of urgency, to push for parliamentary consideration of important reports. When Art 29(1) was amended, a key sentence was added: "The said report shall, as soon as possible, be discussed during a dedicated parliamentary sitting."

The Commission had highlighted what it considered a duty of Parliament to debate reports of the Ombudsman because, prior to the Opinion of the Commission, Art 29 required reports to be laid before the House of Representatives but did not require Parliament actually to debate them. The Commission therefore recommended that "Parliament should be obliged to debate reports addressed to it by the Ombudsman."

To the knowledge of the Ombudsman, since the coming into force of Act XLII of 2020, and after the 8 March 2023, the only report debated in the House of Representatives was the “own initiative” investigation on maladministration in the Corradino Correctional Facility of the 31 January 2025.

Corrupt practice

To safeguard the Office, Act XLII of 2020 introduced into Art 64A an additional substantive function that was not established in the Ombudsman Act 1995 being that 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 may refer his findings directly to the Attorney General.  An identical provision was also introduced in the Ombudsman Act itself [Article 18(6)].  These provisions were consequential to the intervention of Venice Commission Opinion process.  The reform process did not stop there and went beyond the Constitution and the Ombudsman Act.

Act XLI of 2020

Challenge

The Venice Commission recommended that the Ombudsman and other oversight bodies should receive injured-party status ex lege, enabling them to challenge decisions of the Attorney General not to prosecute. The recommendation was accepted in substance rather than detail and this was reflected in changes to other laws by virtue of Act XLI of 2020.

Chapter 9

Art 541(4)

Following the enactment of Act XLI of 2020, the Ombudsman was given parte civile status to dispute a decision by the Attorney General not to prosecute. Apart from the Ombudsman, that status was extended to the Auditor General, the Commissioner for Standards in Public Life and the Permanent Commission Against Corruption.  These institutions were given a statutory right to act as parte civile when they report a corrupt practice, as defined in the Permanent Commission Against Corruption Act, to the Attorney General. The remedy in detail provides that where the Attorney General decides not to prosecute, the Ombudsman as injured party may, within one month from when he knows or could have known of the decision, whichever is earlier, request the Attorney General in writing and giving reasons to reconsider that decision. If the Attorney General reconsiders but confirms the decision not to prosecute or fails to reply within the statutory period, judicial review can be undertaken by virtue of Art 469B of Chap 12.

Chapter 12
 
Art 469B of Chap 12

If the Ombudsman decides to proceed before the First Hall Civil Court in accordance with Art 469B the Court has every right to inquire into the validity of that decision, while giving due account to the constitutional independence of the Attorney General. The statutory grounds are narrow in the sense that the decision not to prosecute cannot be contested on legal considerations or unreasonable and for the oversight body to acquire parte civile status and proceed against the Attorney General it must have reported the corrupt practice to the Attorney General.

Conclusion

The reforms examined in these two parts shows that the impact of the Venice Commission on the Office of the Parliamentary Ombudsman in Malta has been both constitutional and practical. Its Opinions contributed to strengthening the security of tenure and independence of the Office, elevating its core investigative role to constitutional level, reinforcing parliamentary consideration of its reports, and extending its functions in areas touching on the rule of law and accountability.

Taken together, these developments have enhanced the institutional standing of the Ombudsman and widened the legal framework within which the Office can act. They also demonstrate how external constitutional scrutiny can translate into lasting domestic safeguards for independent oversight, good administration and the protection of the public interest.