July 1, 2015

Dear Mr Editor,

I looked up the word “farce” in the dictionary because I was shocked to read in yesterday’s edition of The Royal Gazette that Minister Fahy referred to the Ombudsman’s findings in relation to an immigration complaint as a “farce”.

The Oxford dictionary definition of the word “farce”, in the context of Minister Fahy’s comments, means “absolutely futile proceedings, pretence, mockery”.

Minister Fahy’s criticism of the Ombudsman’s findings as “farce” is shocking for a number of reasons.

First, the office of the Ombudsman is a constitutional one.

Second, good governance and good administration are recognised by the United Nations as fundamental to the rights and dignity of human beings.

Therefore, the right to complain against government is a significant human right.

The fact that the right to complain about government to an independent agency without hindrance or reprisal (and to have it resolved based on the merits of the complaint) is entrenched in our laws is a monumental achievement of our democracy.

Equally important, this promotes public confidence in how government is run.

Hurling an insult to the Office of the Ombudsman undermines public confidence in the very remedy that our laws allow.

Third, it’s important for the public to be reminded of the functions of the Ombudsman. In Bermuda, the role of the Ombudsman is primarily to deal with maladministration. That means that the Ombudsman (a) investigates any administrative action of an authority for the purpose of deciding whether there is evidence of maladministration on the part of the authority; and (b) upon completion of an investigation, makes recommendations to the authority concerning a particular administrative action and generally, about ways of improving its administrative action taken by the authority.

“Maladministration” means “inefficient, bad or improper administration”.

This includes:

• unreasonable delay in dealing with the subject matter of an investigation

• abuse of any power (including any discretionary power)

• or administrative action that was: (i) contrary to law; (ii) unfair, oppressive or improperly discriminatory or based on procedures that are unfair, oppressive or improperly discriminatory; (iii) based wholly or partly on a mistake of law or fact or irrelevant grounds; (iv) related to the application of arbitrary or unreasonable procedures; or

(v) negligent.

It is a fundamental tenet of the Office of the Ombudsman that it is neither the advocate of the complainant nor the public authority. In handling and investigating complaints, the Ombudsman adopts a neutral and impartial stance.

Section 15 of the Ombudsman Act 2004 makes it clear that upon completion of an investigation, if the Ombudsman determines that there is no evidence of maladministration on the part of the public authority, he must record his decision and his reasons in writing and notify both the complainant and the public authority. If the Ombudsman decides that there is evidence of maladministration on the part of the public authority, he must report his decision to the public authority and the complainant, and make such recommendation to the public authority as he sees fit.

Back to my first point. I can’t imagine any government minister, who has been the subject of court proceedings and lost, publicly refer to such a judgment as a “farce”. A public apology from Minister Fahy to the Ombudsman is in order.

VENOUS MEMARI

St George’s