Soldier sues government over Tribunal's changed interpretation of the law

An AFM gunner whose constitutional case over a missed promotion was dismissed in 1999 has filed new Constitutional proceedings against Commander of the Armed Forces and the Attorney General asserting that a subsequent change in the procedure dealing with complaints about promotions had violated his fundamental human right to a fair hearing.

Plaintiff Stephen Bartolo, who had enlisted as a gunner in 1987, had filed a complaint before the now defunct Tribunal for the Investigation of Injustices in 1997 after being passed over for promotion.

His complaint, however, had been declared inadmissible due to the tribunal's rigid interpretation of the Armed Forces Act. That law stipulates that complaints had to be passed up the chain of command – and when the problem was with a soldier's immediate superiors, to the Commander of the AFM – and Bartolo had not done so.

The gunner had then unsuccessfully filed a constitutional case in late 1997, which case was decided in favour of the defendants.

But in a court application filed this morning by lawyers David Camilleri and Joseph Gatt, Bartolo claims that in cases which came after the 1997 decision, the Commander of the AFM had stopped using the chain of command argument and that the Tribunal had stopped raising it of its own accord.

The lawyers argued that the right to legal certainty extends both to a person who is subject to a decision that is the first of its kind, as well as to persons who are subjected to decisions which break from years of consistent legal interpretation.

“Therefore the fact that he plaintiff was one of the first against whom this type of interpretation, which was subsequently totally ignored, was used gives him victim status for the purposes of these proceedings.”

The man's lawyers asked the First Hall of the Civil Court in its Constitutional jurisdiction to declare that the change in interpretation and the discontinuance in applying the plea of failure to make a complaint through the chain of command breached the man's right to a fair hearing under the European Convention of Human Rights and Fundamental Freedoms as well as under the Constitution.

The court was asked to make pronouncements to remedy the breach of the man's rights by stating a forum where he could file a complaint, because the Tribunal for the Investigation of Injustices no longer exists and by awarding him material and moral damages for the injustice he suffered.