A judge should evaluate all the evidence produced in the acts of the case. This was held by the Court of Appeal on 9 April 2024 in Anthony Muscat et vs the Prime Minister and the Commander of the Armed Forces of Malta.
The Court was presided by the Chief Justice Mark Chetcuti and judges Robert Mangion and Grazio Mercieca.
19 Armed Forces personnel had filed court action after they were not given a promotion and argued that this was administrative abuse. They further argued that the persons who were given a promotion were either equally senior or less senior or else less qualified. 18 of the 19 soldiers withdrew the action in order for them to be considered for a backdated promotion. Carmel Parnis was the only soldier who wanted to proceed with this case.
On 21 March 2019, the First Hall of the Civil Court turned down Parnis’s claims. The Court in its judgement held that Parnis joined the Armed Forces of Malta in 1985.
Colonel Cauchi Inglott told him that as long as he would be head of the Maritime Squadron, he would not give Parnis a promotion. In fact, in 2006, he was not promoted to Warrant Officer, but in 2007 he was promoted to Warrant Officer 1. Article 37 of the Appointments and Conditions of Service of the Armed Forces Regulation state that the promotions should be given after recommendation based on efficiency, seniority and qualifications.
These are collective elements which determine whether a person should be promoted. Those with the highest points, should be given a promotion. In this case Colonel Mark Mallia testified by means of an affidavit and told the court that he had filled in the AFM Promotion Assessment Report for Parnis.
Part of the assessment is subjective and given by the commanding officer. It is based on the capability of the soldier and his attitude. There are also objective criteria, which include courses taken, and whether the person is physically fit and whether he has shooting skills. The First Court argued that Parnis did not prove that the persons who were promoted did not merit the promotion.
The First Court quoted from Maurice Cristina vs Central Bank of Malta of 5 July 2005, which held that the Plaintiff must show that he deserves a promotion and not that there is no reason for him not to be given a promotion.
In Francis Borg Falzon vs Commander AFM, decided on 7 July 2004, the court held that if a member of the AFM is not given a promotion, it does not automatically mean that this is a case of injustice.
Seniority is important if there are other candidates who have different attributes.
In this case, the First Hall reading through the Promotion Assessment Report held that Lieutenant Cauchi Inglott did not abuse his discretion and took into consideration all the factors. The First Court turned down Parnis’s request.
Parnis appealed the judgement and the first grounds of appeal dealt with the merits of the case. Parnis argued that he was given other promotions, however, the Court of Appeal held that being given a promotion does not mean he was entitled to other promotions. Neither does it follow that he should have been given a promotion when Colonel Cauchi Inglott was in charge. The First Court did take into consideration what was said by Colonel Cauchi Inglott. The Court decided that Colonel Cauchi Inglott did not abuse his discretion. As to Colonel Mark Mallia, Parnis argued that he never served under him and therefore, the First Court should not have rested on Mallia’s affidavit.
Mallia had explained the process of promotions within the AFM and therefore, Parnis did not need to work under Colonel Mallia for him to be able to testify.
The Court held that it is for the judge to evaluate the evidence brought in the case. If the Plaintiff attacks the value of the evidence produced, then he must show that the evidence is inadequate.
The Plaintiff should not pick and choose evidence to show that the complexity of the evidence is sufficient. The Court of Appeal held that the First Court did not ignore the relevant evidence or else took particular attention to irrelevant evidence.
The court acts do not include the reports of those candidates who were given a promotion.
The Court then moved to turn down the appeal and confirm the judgement.
Av. Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
This article may also be accessed on Malta Today.
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