AFM promotions case: Court finds no illegalities in 'doubtful' double promotion

A court has dismissed a case over discrimination in AFM promotions filed by a Lieutenant Colonel, saying that it could not decide on whether the choice of candidates for promotion was good or bad, only whether it was legal.

Lt Col Andrew Mallia had filed a lawsuit in 2016 stating that in 2013 Colonels Pierre Vassallo, Mark Said, Jeffrey Curmi and Mark Mallia had been promoted to the rank of colonel just two weeks after being promoted to lieutenant colonel.

The news of the four officers' lightning promotion, amongst them current AFM commander Brigadier Jeffrey Curmi, had made headlines, particularly because they had taken place just a few months after the current Labour government came to power.

The AFM's Commanding Officer at the time had declared that he had not recommended accelerated promotion and it was the minister of the time, Manwel Mallia, who had taken the relevant decisions.

A lawsuit was then filed by Mallia, who claimed that the appointments had breached his rights. Lt Col Mallia had previously petitioned the President of Malta for redress, but had taken the matter to court after his complaint was dismissed.

Mallia argued that, having been a Lieutenant Colonel for three years at the time, he had seniority over them and that the officers could not possibly be more qualified than him. The officer argued that the treatment of the four officers constituted discrimination against him.

Mr. Justice Mark Chetcuti, in his judgment deciding the case, reminded that “it is not in the power of the court to decide whether the decision taken by the defendants was the right one, but simply whether or not it was legal and reasonable.”

In fact, it noted that in the case of Jeffrey Curmi, his service as Chief Intelligence Analyst to Operation Alalanta in the months running up to his promotion was exemplary. A report stated that Curmi had “effortlessly stepped into the Deputy Assistance Chief of Staff (Intelligence) role… I have seen twenty officers in various positions during my role as ACOS CJ2 and Major Curmi not only excelled, but stood out amongst both peers and previous incumbents in all the intelligence posts,” the court noted the report as stating.

With regards to another candidate, Colonel Mark Mallia, the court noted that he had academic qualifications and vast experience in administration and human resources.

The court examined testimony tendered by lawyer and former minister Emmanuel Mallia, who was the Minister responsible for the Armed Forces at the time. He explained that when it comes to promotions up to the rank of Major these are given according to the number of years the member has spent in a particular rank, while for the promotions from Major to Lieutenant Colonel there was the SRAAC (Senior Ranks Appointments Advisory Committee) which recommends to the Minister who should be promoted. He said that this committee had recommended the promotion of the four individuals indicated.

Mallia explained that when it comes to the rank of Colonel to Brigadier, this choice was down to the Minister and the SRAAC is not involved.

Speaking about Andrew Mallia, the former Minister testified that he had good qualifications to become a Colonel on operations but was only proficient in the maritime sector, while Claudio Spiteri was proficient in other sectors and he felt that he was more deserving for this post, which went beyond the issue of seniority.

Having considered the qualifications and experience of all the parties, the court said the decision did not emerge to be unreasonable or discriminatory.

The court said it understood that the decision to promote Jeffrey Curmi and Mark Mallia twice in two weeks was “doubtful”, but pointed out that doubts and suspicions were not a basis for a court judgment. The court had to decide on the basis of the evidence before it and the law, said the judge, adding that he could not base its decision on his opinion as to who should have been promoted.

The case was dismissed.

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