Court orders home affairs ministry to comply with Ombudsman

A judge has ordered the home affairs ministry to furnish any and all information requested by the office of the Ombudsman in its investigation into AFM promotions, bringing to an end the two-year court saga.

In February this year, Ombudsman Joseph Said Pullicino had filed an application to the Civil Court, complaining that his office was being hindered from investigating complaints filed by army officers about promotions, salaries and pension rights.

The complaints had been lodged with the Ombudsman by a group of army officers in September 2013, following several promotions awarded to Majors and lieutenant colonels. Several officers complained that they had unfairly lost the promotions to other officers who had less experience, fewer qualifications and lower seniority.

The most notorious example was that of Jeffrey Curmi, who rocketed up four ranks - from major to brigadier in a matter of months.

In his application, the Ombudsman had noted that following his request to the army chief to hand in all relevant documentation, Brig. Curmi had replied that the aggrieved officers had not followed the established procedure of seeking redress through the President.

The Brigadier’s refusal was followed by a similar response from the ministry’s Permanent Secretary Kevin Mahoney.

In a judgment delivered today, Mr Justice Lawrence Mintoff noted the delicate nature of the situation: a disagreement between two representatives of different organs of the State, on one hand the minstry for home affairs and national security and the other hand the Ombudsman.

The defendants had argued that the Ombudsman lacked jurisdiction to hear the complaints of an army officer as they had not exhausted the ordinary remedy granted by law and in any case “because the merits of the case in question involved the appointment of high ranking officers in the AFM, which is a function exercised by Government to the exclusion of all other authorities".

The Ombudsman had attempted to investigate the complaints but had encountered, in his words, an insurmountable obstacle in the person of the Commander of the AFM.

Said Pullicino argued that the ordinary remedy could not have reasonably been used and had declared in 2014 that the complainants could not have been expected to appeal to the President as a means of redress as this would effectively act as a renunciation of their right to refer the case to the Ombudsman (as the Ombudsman is precluded from investigating decisions of the President of Malta).

The ordinary remedy available to the officers is laid out in article 160 of the Armed Forces Act.

"(1) If an officer thinks himself wronged in any matter by a superior officer or authority and on application to his commanding officer does not obtain the redress to which he thinks he is entitled, he may make a complaint with respect to that matter to the Commander.

(2) On receiving any such complaint it shall be the duty of the Commander to investigate the complaint and to grant any redress which appears to him to be necessary or, if the complainant so requires, the Commander shall through the Minister make his report on the complaint to the President of Malta in order to receive the directions of the President of Malta thereon."

The court held that what was being impugned by these proceedings was not the promotions or appointments that had given rise to the complaint, but the refusal of the home affairs ministry to collaborate with the Ombudsman’s investigation, “first on the pretext that the Army officers who complained had not exhausted their ordinary remedies and subsequently that the Ombudsman lacked the jurisdiction to investigate acts carried out under the sovereign authority of the state."

Judge Mintoff ruled that in the circumstances, the remedy provided by the Armed Forces Act was not fitting, effective or adequate because “it is not reasonable to expect the complainants to demand a remedy from the very person whose decision may have been the cause of the complaint.”

In a mammoth 69-page judgment, he declared that the Ombudsman did possess jurisdiction to investigate complaints about appointments, promotions, slalries and pension rights in the AFM, also declaring that the decision whether or not to exercise his functions under the Ombudsman Act where other remedies were present, rests solely in the ombudsman.

It also agreed that having recourse to the President for a remedy was not a remedy that could reasonably be expected in the circumstances. Judge Mintoff ordered the Ombudsman to continue his investigation and ordered the defendants to collaborate with the investigation.

AD welcomes ruling, hopes the government will not stop Ombudsman from carrying out duties

Alternattiva Demokratika, the green party has said it welcomes this morning’s decision by Judge Wenzu Mintoff, it said in a statement.

AD deputy chairperson Carmel Cacopardo said that the party hopes "the government will desist from further obstructing the Ombudsman from carrying out his duties."

“Muscat will no longer undermine the Ombudsman” – PN

The Nationalist Party said that through its sentence, the court had disallowed Muscat’s government from undermining the Ombudsman’s functions.

The party said in a statement that the judgment was proof that the Ombudsman can and does indeed have the power to scrutinize the injustices that plague the Armed Forces.

“The sentence had ordered the home affairs minister to pass on information about injustices occurring in the Army,” the statement reads, adding that minister Carmelo Abela had continued to follow in the footsteps of his predecessor Manwel Mallia in choosing to continue in this fight.

PN added that it expected Abela to stop undermining the Ombudsman and to end the cycle of discrimination and injustice in the AFM.

“We encourage all workers, including AFM members to take heart and put forward complaints about discrimination and abuse to the Ombudsman,” the statement reads.