Falzon’s duty to investigate not constrained by Ombudsman
Matthew Vella The Parliamentary Ombudsman has referred to the current dispute between the Malta Environment and Planning Authority and Audit Officer Joe Falzon over his report on the approval of a permit for a development in Qala, Gozo, that was still pending before the authority’s Appeals Board.
Joe Said Pullicino said it was incorrect for MEPA to state that he had “warned” Falzon not to investigate planning cases such as the Qala permit, that were sub judice before the MEPA appeals board.
The bone of contention concerns a permit for a three-storey development over Qala ridge on the site of a restaurant that was designated as a ‘rural hamlet’ by the Gozo local plan.
Following his report into the approval of the permit, MEPA rebuked Falzon for investigating this controversial permit while it was still under appeal. MEPA insists that the audit officer should never have investigated the Qala Ridge case while it was under appeal. “The Ombudsman had, in the past, already warned the Auditor not to investigate planning cases that were sub judice,” the authority said.
But Ombudsman Joe Said Pullicino yesterday said that Falzon is a MEPA employee and had no institutional relationship with the Ombudsman, “who is therefore not empowered to directly influence, verify or control his actions or decisions.”
The Ombudsman said he understood Falzon’s concerns on the Qala case, because under planning law, construction can still be allowed during the hearing of the appeal when the case is still sub judice. “It is the opinion of the Ombudsman that this anomaly could seriously and irremediably prejudice the rights and interests of interested parties as well as of society in general. This anomaly should be addressed and rectified in the forthcoming MEPA reform,” Said Pullicino said.
The Ombudsman said it was not precise to state that the Office of the Ombudsman is “a higher institution” since it is autonomous. But he said it was true that a complainant who is not satisfied with the investigation carried out by the Audit Officer can resort to the Ombudsman to have his complaint investigated anew.
Referring to the investigation into the recylcing plant in Marsaskala, Said Pullicino said he was empowered to suspend the investigation he had carried out, if the case had been filed before a court or tribunal.
“It was for this reason that in the investigation on the recycling plant in Marsascala, the Ombudsman tendered advice to the Audit Officer that, in his opinion, he should be guided by the provisions of the Ombudsman Act and suspend his investigation and the publication of his findings.”
Said Pullicino said that advice was motivated not only because the publication of his report could potentially prejudice the outcome before the MEPA Appeals Board, but also by the basic principle that every administrative body has the duty to respect judicial authorities, to avoid exerting undue influence to ensure that the final binding decision is taken serenely, fairly, free from external pressures and strictly according to laws and regulations.
“That advice was valid in 2006 – it remains valid today. This incident further highlights the prevailing unfortunate situation that the conduct of investigations by the Audit Officer, as well as by other independent authorities entrusted with administrative audit in the public administration, is not regulated by law. It should in my view be subject to the same procedures laid down in the Ombudsman Act. These officers should, in the exercise of their functions, enjoy the same institutional protection and have the same powers and duties that the Ombudsman has. It is for this reason that the Ombudsman has proposed to government a measure of convergence between these authorities and his office,” Said Pullicino said.
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