Chapter 385

[ CAP. 385. 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 1. The short title of this Act is the Ombudsman Act. 2. (1) In this Act, unless the context otherwise requires - "Ombudsman" includes, to the extent of any delegation under article 27, a person so delegated; Short title. Interpretation. Amended by: XVII. 2010.2. "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) Cap. 363. 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 *See article 1(2) of this Act as originally enacted, and Legal Notices 102 and 160 of 1995.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. Cap. 595. 1 2 CAP. 385.] OMBUDSMAN APPOINTMENT Appointment of Ombudsman. 3. 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. Disqualification and incompatibilities. 4. (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. Term of office. 5. (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. Removal or suspension from office. 6. (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 OMBUDSMAN [ CAP. 385. 3 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. 7. (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. Filling of vacancy. (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. 8. (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 Temporary appointment of Ombudsman. 4 CAP. 385.] OMBUDSMAN 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). Oath of Office. 9. (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. Resources. 10. (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 OMBUDSMAN [ CAP. 385. 5 acquired by them under this Act. Such oath shall be administered by the Ombudsman. 11. The accounts of the office of the Ombudsman shall be audited by the Auditor General and the Public Finance Management Act shall apply. Audit. Amended by: XVI.1997.8. Cap. 601. FUNCTIONS 12. (1) Subject to the provisions of this article, this Act applies to - Application of this Act. (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. 13. (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 Functions. 6 CAP. 385.] OMBUDSMAN 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. Time limit for complaints. 14. (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 OMBUDSMAN [ CAP. 385. 7 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. 15. (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. Rules for Ombudsman’s guidance. (2) All rules made under this article shall be printed and published in the Gazette. 16. (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. 17. (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. Mode of complaint. Cap. 525. Refusal to investigate complaints. (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. 17A. (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 Appointment, functions, etc., of Commissioners for Administrative Investigations. Added by: XVII. 2010.3. 8 CAP. 385.] 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. Organizational setup. Added by: XVII. 2010.3. 17B. (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 OMBUDSMAN [ CAP. 385. 9 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. 17C. (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. Application of the Ombudsman Act to the Commissioners. Added by: XVII. 2010.3. (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. 17D. (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. Review of recommendations made by the Commissioners. Added by: XVII. 2010.3. 10 CAP. 385.] OMBUDSMAN (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 Proceedings. Amended by: XLII.2020.5. 18. (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: Cap. 326. 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 OMBUDSMAN [ CAP. 385. 11 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. 19. (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. Evidence. Amended by: L.N. 425 of 2007; L.N. 105 of 2008. (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. 20. (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, Exemptions from disclosure. 12 CAP. 385.] 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. Secrecy of information. 21. (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. Cap. 9. (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 Procedure after investigation. 22. (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 [ CAP. 385. 13 (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. 23. (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. Information to complainant. (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. 24. Except on the ground of lack of jurisdiction, no proceeding or recommendation of the Ombudsman may be challenged in any court. Proceedings not subject to review. 14 CAP. 385.] Proceedings privileged. OMBUDSMAN 25. (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 Power to enter premises. 26. (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. Delegation of functions. 27. (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. Use of name "Ombudsman". Amended by: L.N. 425 of 2007; L.N. 105 of 2008. 28. (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). Reports. Amended by: XLII.2020.6. 29. (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 [ CAP. 385. (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. FIRST SCHEDULE (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. SECOND SCHEDULE Amended by: XVI. 1997.10. 15 16 CAP. 385.] OMBUDSMAN (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. Action taken by the Minister responsible for justice under the Extradition Act. 3. Cap. 276. 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. Cap. 220. Cap. 9. 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.