Government files appeal over Ombudsman’s oversight on army promotions

The Attorney General has appealed a judgement ordering the home affairs ministry to furnish all information requested by the office of the Ombudsman in its investigation into AFM promotions.

The appeal means the government will not yet back down on a controversial decision to carry out its own 'grievances board' hearings into army promotions.

But in February this year, Ombudsman Joseph Said Pullicino 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 AFM Commander Jeffrey Curmi, who rocketed up four ranks - from major to brigadier in a matter of months after the election of the Labour Party in 2013.

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).

Judge Lawrence Mintoff 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.