Discharge from AFM challenged

A member of the Armed Forces of Malta filed a complaint with the Ombudsman alleging that he suffered an injustice when he was discharged after he had served his term in prison following a court judgement.  He maintained that the discharge was unjust.

Considerations and conclusion

  1. The Ombudsman informed complainant that the Ombudsman Act gave the Ombudsman jurisdiction to investigate complaints that were filed by members of the Armed Forces only in respect of appointments, promotions, salaries and pension rights as laid down in the First Schedule of the Act.
  1. One cannot in any way conclude that the complaint fell within these limits of the Ombudsman’s jurisdiction. It was within the discretion of the Commander of the Armed Forces to terminate complainant’s army service because of the court proceedings and the eventual judgement against him.
  1. Such cases are regulated by Legal Notice 91 of 1970 that contains regulations on the Appointments and Conditions of Service of the regular forces of the Armed Forces of Malta. Regulation 45(1)(e) lays down that:

Service with the force can be terminated in cases and manner herein provided:- a man of the force that during his service is condemned

(1) from the Civil court or a court martial to prison; or

(2) from a civil court to detention; or

(3) from a court martial for a period of detention that when confirmed, is for twelve months or more; shall be discharged from service except if in the opinion of the Commander his retention in the service is necessary in the interest of the service.

  1. Complainant had been condemned to prison by a Civil Court therefore he was liable to be automatically discharged from the service. It appeared that the Commander did not feel the need to make an exception in his case and therefore complainant could not remain in the service.
  1. The Office sought to help complainant to seek redress through the Department for Employment and Industrial Relations. However, it transpired that, since he was a member of a disciplined force, he could not be considered to be an “employee” within the definition of the Employment and Industrial Relations Act.  In fact Article 2 of that Act defines an “employee” as including a person who is employed or who is normally employed or who is seeking employment with any government department, except if he is a member of a disciplined force.  Complainant could not therefore contest his discharge from the Army before civil tribunals because legislation governing industrial relations did not apply to members of the Armed Forces.

For this reason the Ombudsman could not proceed with the investigation.

 

Case Studies