The saga of six AFM officers who were denied promotion in 2013 still lingers in the minds of those who think this country should be run fairly and justly. Let the facts speak for themselves.

Immediately after the 2013 general elections, a promotion exercise in the AFM was conducted. It seems that the main criteria adopted were long jump and high jump. Seasoned officers were denied promotion to colonel.

This group of aggrieved officers referred their case to the Parliamentary Ombudsman appointed by parliament on the strength of a resolution supported by two-thirds majority in the House.

The government refused to co-operate with the Ombudsman arguing that his parliamentary office could not conduct  any investigation into complaints  against the AFM.

All public authorities, local councils and public officers are subject to the Ombudsman’s powers of investigation. The government argued that the AFM was not. It even argued that AFM matters amounted to unreviewable “acts of state”.

The Ombudsman, in an unprecedented action, instituted proceedings in court in 2015 against the then minister responsible for the Armed Forces. The government again pleaded that its actions at the AFM amounted to “acts of state” not reviewable by a court of law.

In an erudite judgment in October 2015, the court of first instance presided over by Judge Lawrence Mintoff rejected this fallacious argument. In a country governed by the rule of law, no public entity was immune from the Ombudsman’s investigative powers.

The government persisted in its error. It appealed to the Court of Appeal which in October 2016 again affirmed the right of the Ombudsman to investigate the 2013 AFM promotion exercise.

After years of court litigation, the Ombudsman won the right to intervene. And so he did. He delivered a scathing report in February 2019, criticising the promotion exercise and upholding the complaints of the AFM officers.

In his conclusion, the Ombudsman said the process had lacked professionalism because, among other things, the selection board did not have members with military experience and included two persons of trust appointed by the government. In the words of the Ombudsman, the process served as a screen for the selections that had to be made. He said that as a rule, persons of trust should not be members of such selection boards.

The Ombudsman did not mince his words: “It was a process tailor-made to achieve a preordained result. As such it improperly discriminated in favour of the chosen applicants. It also improperly discriminated against the complainants and indeed against all other eligible candidates in so far as they were not allowed to compete on an equal, level playing field with the chosen candidates.”

Ombudsman Anthony Mifsud lambasted the minister, expressing surprise that the “ministry does not seem to appreciate the significance of selecting the best officers in the army by a process which is above reproach and truly impartial”.

In a normal country heads would have rolled- Tonio Borg

Unbelievably, having lost at three instances, the government refused to implement the Ombudsman’s recommendation! After seven years of struggling to obtain justice, the discriminated AFM officers were faced with a status quo.

Everything was to remain as it is. So was the government’s irregular promotion exercise. To add insult to injury, on the eve of the 2017 elections, a hastily established administrative board granted 885 promotions, some of them backdated by 20 years to half the entire army, while the recommendations of the official Ombudsman, who is appointed by parliament, was ignored!

In a normal country, heads would have rolled. In this case, the only matter which was buried and interred was the officers’ quest for justice.

That is why the opposition has wisely put forward a proposal, one of 20 presented as a response to the Venice Commission Report, that every year, parliament debates a report compiled by the Ombudsman regarding recommendations of his office which were not implemented by the government. Parliament would have the right to summon witnesses and public officers to justify their refusal to implement recommendations made by the Ombudsman.

This would make everyone accountable in a public forum.  Any person acting in an official capacity would have to produce strong and credible reasons to justify his inaction in executing the recommendations of the Ombudsman.

In the current state of affairs, the non-implementation of such recommendations is buried, hidden and justified by the powers that be on the pretext that, after all, legally speaking, the recommendations of any Ombudsman in any jurisdiction remain only recommendations and are not legally binding.

There are things which a politician should not do, not because they are unlawful but because they are politically incorrect. Ignoring the Ombudsman’s conclusions in this case is one of them. 

Home Affairs Minister Byron Camilleri, who is responsible for the Armed Forces,  should wake up from his slumber, investigate this case and mete out justice to the AFM officers who have won their case before the Ombudsman but have had their quest for justice quashed by the government’s purposeful inertia and persistence in not admitting its errors.

A listening government (gvern li jisma’) indeed!

Tonio Borg is a former European Commissioner.

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