The Armed Forces of Malta did not violate two officers’ human rights when it rejected them for promotion, without giving them a hearing, after they did not receive security clearance, a court ruled yesterday.
Officers who did not have security clearance did not lose their rank
Lieutenant Colonel Mario Schembri and Major Pierre Vassallo had filed a constitutional application in the First Hall of the Civil Court against the Prime Minister, the Minister for Justice and the Interior, the Attorney General and the head of the AFM.
They said they had applied for promotion within the AFM but their applications had been dismissed on the ground that they did not have security clearance from the National Security Authority (NSA).
They had been given no reasons, nor the opportunity to defend themselves. This, they claimed, was in violation of their fundamental human right to a fair hearing.
Mr Justice Anthony Ellul said the two officers were not alleging that their human rights had been violated by the law but by the actions taken by the NSA and the head of the AFM.
The court heard that in conformity with the EU Security Regulations, persons occupying posts within the public service who were given access to classified information had to have security clearance. The assessment for security clearance was carried out by the NSA and not by the head of the AFM.
The court heard that army officers who did not have security clearance did not lose their rank but would not be eligible for further promotions.
When Lieutenant Colonel Schembri and Major Vassallo were told they did not have this clearance, they had complained to the Commissioner appointed in terms of the Act regulating the Security Services.
However, they were told that their lack of security clearance was confirmed. No explanation for the lack of security clearance was given to them.
Mr Justice Ellul said that the lack of security clearance clearly affected the two officers’ civil rights for their career prospects and their duties. But as the law did not exclude the officers’ access to the courts, their human rights had not been violated.