Ombudsman reacts to Mallia, will continue investigating AFM complaints

The Ombudsman will not stop investigating complaints raised by members of the Armed Forces of Malta even though the ministry for home affairs was refusing to provide the Office of the Ombudsman with the required information to proceed with the investigation.

The Ombudsman was reacting to comments by Home Affairs Minister Manuel Mallia in parliament. The minister argued the Ombudsman does not have jurisdiction to investigate complaints received from AFM Officers. The minister also said that complaints should be brought to the attention of the President of Malta by the Commander, through the Minister, according to the AFM Act.

Mallia also referred to a 2003 letter by an Investigating Officer within Office of the Ombudsman, by which he declined to investigate a complaint lodged by an Officer in the Armed Forces in respect of a promotion.

“The Ombudsman has already informed the Armed Forces of Malta that in his considered opinion, that decision was manifestly mistaken since in effect it denies the right which the Officers enjoy under the Ombudsman Act to have recourse to him.

“Apart from other considerations that decision, ignored the basic and elementary legal principle that a specific law prevails over one of a general nature that preceded it,” the Ombudsman said.

He added that the Article in the Armed Forces Act cited by the Minister regulates the procedure through which Officers may seek redress for any grievances which they may have.

The Ombudsman Act, on the other hand provides for specific redress for complaints on appointments, promotions, salary and pension rights.

During the previous administration, this matter had been the subject of discussion over several months between President Emeritus George Abela, the Ombudsman, the Office of the Prime Minister, the Office of the Attorney General, and Brigadier Martin Xuereb, then Commander of the Armed Forces.

An agreement was reached that ensured that AFM Officers had the right to seek effective redress from the Ombudsman if they opt to refer their case to him.

According to this Agreement, an AFM Officer can opt to avail himself of his right to submit his complaint in terms of Article 160 of the Armed Forces Act, to the President of Malta, through the Commander of the Armed Forces and the Minister.

In that case he would be considered to have renounced his right to seek redress from the Ombudsman. On the other hand the Officer could choose to submit his complaint in the first place to the Ombudsman while retaining his right to have his complaint referred to the President in case he was not satisfied with the Ombudsman’s decision.

“The choice was his. This Agreement respects the rights of Officers under the two laws which apply in their case, besides also respecting the Consitutional hierarchy,” the Ombudsman said.

This Agreement was communicated to AFM Officers through a General Order issued by the Armed Forces of Malta on 11 November 2011. On the basis of this Agreement, the Ombudsman investigated and gave his ruling on a number of complaints raised by a number high ranking AFM Officers.

His Final Opinion was considered by AFM and acted upon by the previous administration. Independently of the outcome, there was agreement that the new procedure was clear and respected the rights of all concerned. Administrative justice was not only done but was seen to be done.

“The Ombudsman has jurisdiction to investigate complaints from AFM Officers in respect of appointments, promotions, pay and pension rights. It is the Law that gives the AFM Officers such a right and this right cannot be denied to them. So long as the law and the General Order remain in force, the Ombudsman is in duty bound to continue to extend his protection to those army Officers who complain to him in respect to appointments, promotions, pay and pension rights. He has done so and will continue to do so.”

Besides correspondence with the Ministry, the Ombudsman has kept contact with H.E. Marie Louise Coleiro Preca, President of Malta.

“Reason must prevail so as to safeguard the citizen’s rights. Complaints received by the Ombudsman will continue to be investigated according to existing legislation and practices and in conformity with a law which safeguards the citizens’ rights to a transparent and accountable administration.”

No reason, other than that the Ombudsman does not have jurisdiction in such cases, has been forthcoming as to why the Armed Forces and the competent authorities are resisting that they submit their action to scrutiny of an authority established under the Constitution of Malta and mandated with the function of safeguarding the fundamental right of the individual to good public administration. “It is clearly in the interest of all concerned and in particular the Officers, the Armed Forces and the competent authorities to allow the investigation of complaints submitted to the Ombudsman to take its normal course so as to ensure that everything has been done in accordance to justice and fairness.”