In pleas to the Court, Ombudsman Joseph Said Pullicino asked why the Home Affairs Ministry and its Permanent Secretary Kevin Mahoney filed an exception questioning whether the court has jurisdiction to hear and eventually decide whether the Ombudsman has jurisdiction to investigate complaints from within the Armed Forces.

On 18 March, the defendants filed an exception with the court, stating that it does not have jurisdiction to decide in this case. The Ministry is arguing that for high end public official appointments, especially those in sensitive areas such as the Armed Forces, a certain degree of trust is needed”. The defence was referring to a trust that the person is capable of handling the jobs of national importance.

As an example of such trust for persons to be able to conduct their job, he referred to the appointment of the Presidents and of members of the judiciary.

The Ministry in its note of exceptions, mentioned that a degree of subjective trust is needed when appointing someone to such a high position, referring to trust in the person and not partisan trust.

The defence also argued that the appointment to such a position is an act of state authority, adding that it is only the state that has the authority to cancel an act of this nature. “This is why legally the court, nor any other authority, can examine such an act.

“This exercise goes beyond the jurisdiction of both the courts and the Ombudsman”.

The Ombudsman is arguing that it has the right to investigate complaints relating to army promotions given in 2013.

The Ombudsman, in written submissions, declared that he is surprised by this claim, as it has “grave implications. Should this claim (that the Court has no jurisdiction in this regard) be accepted by the court it would mean that, the executive would pretend it is above the law”.

“The Executive must accept that we live in a democratic society, where the democratic rule of law as expressed within the Constitution and our laws prevail”.

The Ombudsman argues that his office was set up, alongside other institutions such as the Commission of Public Services, to ensure that no abuse of power takes place and that no discrimination and injustice from public administration to its workers occurs.

The submitted reply by the Ombudsman read that this exception has never been made in the past when handling complaints of this kind.

“Discussions held that resulted in the ‘General Order’, regarding the method as to how complaints from officials be treated, was implemented by the current and previous administrations”. The Ombudsman argues that all parties were included in these discussions including the President, the Prime Minister, with the Armed Forces falling under his remit, the Attorney General’s Office…”.

“The legislature explicitly provides remedies for officials within the Armed Forces through Ombudsman applications when complaints regard matters that are expressly indicated within the Ombudsman Act”.

The Ombudsman argues that this argument by the defence, introduces an element of subjective trust in decisions taken by the executive that can result in the Ombudsman, as well as the Courts having their authority removed when it comes to dealing with government actions, adding that it would be to the detriment of the local citizens.

“The Ombudsman Act says, clear as day, that it is within the courts’ competence to preside over matters relating to jurisdiction.”

The Plaintiffs argued that the defence constantly refer to ‘appointments’, however “the Ombudsman is investigating promotions not appointments”.          

“The appointment the respondents are referring to surrounds the AFM Commander, however we are not and never held the intention of investigating such an appointment as that falls within the discretion of the executive”

The plaintiff asked the court to reject the exception made by the defence, and continue proceedings to urgently decide on the matter of jurisdiction.

The Ombudsman also argued that he resisted advice to suggest that presiding judge, Lawrence Mintoff, abstain from hearing the case because “he has great trust in the impartiality and independence of the Judiciary in our country. He is satisfied that the judiciary as a rule have always carried out their duties honestly, with integrity and objectivity”.