Issue link: https://maltatoday.uberflip.com/i/585015
24 News maltatoday, TUESDAY, 13 OCTOBER 2015 © 2015 EYGM Limited. All Rights Reserved. Thank you! EY's attractiveness survey Malta: Open for business 'Heartfelt thanks to the speakers, delegates and sponsors who contributed to make this year's conference another record-breaking one in more than one sense. Truly, it is you who made it happen. Let's keep the momentum and work harder to make Malta more open for business.' Ronald Attard Country Managing Partner | EY Malta Ministry must comply with Ombudsman MATTHEW AGIUS A judge has ordered the Home Af- fairs Ministry to furnish any and all information requested by the office of the Ombudsman in its investiga- tion into AFM promotions, bringing to an end the two-year court saga. In February this year, Ombuds- man 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 pen- sion rights. The complaints had been lodged with the Ombudsman by a group of army officers in September 2013, fol- lowing several promotions awarded to Majors and lieutenant colonels. Several officers complained that they had unfairly lost the promo- tions 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 briga- dier – in a matter of months. In his application, the Ombuds- man 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 estab- lished procedure of seeking redress through the President. The Brigadier's refusal was fol- lowed 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 repre- sentatives of different organs of the State, on one hand – the minstry for home affairs and national security – and the other hand, the Ombuds- man. 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 offic- ers in the AFM, which is a function exercised by Government to the ex- clusion of all other authorities". The Ombudsman had attempted to investigate the complaints but had encountered, in his words, an insurmountable obstacle in the per- son of the Commander of the AFM. Said Pullicino argued that the or- dinary remedy could not have rea- sonably 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 re- fer the case to the Ombudsman (as the Ombudsman is precluded from investigating decisions of the Presi- dent 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 applica- tion 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 mat- ter to the Commander. "(2) On receiving any such com- plaint it shall be the duty of the Com- mander to investigate the complaint and to grant any redress which ap- pears 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 be- ing impugned by these proceedings was not the promotions or appoint- ments that had given rise to the complaint, but the refusal of the home affairs ministry to collabo- rate with the Ombudsman's inves- tigation, "first on the pretext that the Army officers who complained had not exhausted their ordinary remedies and subsequently that the Ombudsman lacked the jurisdic- tion to investigate acts carried out under the sovereign authority of the state". Judge Mintoff ruled that in the circumstances, the remedy pro- vided by the Armed Forces Act was not fitting, effective or adequate because "it is not reasonable to ex- pect 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 inves- tigate complaints about appoint- ments, promotions, salaries and pension rights in the AFM, also de- claring 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 Ombuds- man to continue his investigation and ordered the defendants to col- laborate with the investigation. Ombudsman Joseph Said Pullicino