Issue link: https://maltatoday.uberflip.com/i/637230
maltatoday, SUNDAY, 7 FEBRUARY 2016 6 News Busuttil: Speaker's daughter must not be TIM DIACONO OPPOSITION leader Simon Bu- suttil has warned that the gov- ernment's nomination of Caro- line Farrugia Frendo, daughter of Speaker of the House Anglu Far- rugia, as magistrate is both un- constitutional and a blatant form of nepotism. Busuttil yesterday told a press conference that Farrugia Fren- do, 33, had not yet acquired the minimum seven years' legal ex- perience that the Constitution requires for new magistrates. Moreover, he argued that she was "clearly" nominated because of her familial relationships , de- claring that "nepotism is a form of corruption". "The government had an enor- mous pool of lawyers from which it could have chosen a magis- trate," he said. "Any prime min- ister who is ready to violate our Constitution, simply to handpick the magistrates they desire, isn't fit to lead the country." Farrugia was nominated as mag- istrate earlier this week, just a few months shy of seven years since she had taken her oath as lawyer. Indeed, the President is expected to swear her in as magistrate af- ter 23 February, meaning that she would have just about met the constitutional requirement. Busuttil adopted a coy stance when asked whether he would welcome Farrugia Frendo's nom- ination once she meets the seven- year requirement. "We will cross that bridge when we get to it, and you can ask me that same ques- tion when or if that time comes," he said. "What's important is that the government had nominated her as magistrate when she was still an invalid candidate." Busuttil reiterated his pledge that a future PN government would reform judicial appoint- ments as has been recommended by retired judge Giovanni Bonel- lo. "I intend to turn the wheels of government around from a race to the bottom to a race to the top," he said. Farrugia Frendo was nominated as magistrate alongside Ingrid Zammit Young, who has since turned down the appointment in light of a warning by the Com- mission for the Administration of Justice that her nomination was unconstitutional. Zammit Young was until re- cently chairperson of the Em- ployment Commission, and the CAJ cited the Constitution as stating that nominees are not eligible as magistrates until three years after their termination of public office. Busuttil said that the CAJ's de- cision was a "condemnation" to the government and insisted that "political responsibility" must be shouldered. "The government has blatantly attempted to violate our Consti- tution, and it cannot just shrug this off and go about its business as usual," he said. 'Drawing a line between the future and the past' When questioned, Busuttil dismissed as "ridiculous" com- parisons with the nomination of former MFSA deputy-gener- al Andre Camilleri as judge in 2002. Back then, Camilleri had to withdraw from Prime Minister Eddie Fenech Adami's nomina- tion after the CAJ had warned that he did not have the neces- sary experience practising in a court of law to serve as a judge – although he fulfilled the consti- tutional minimum requirements. However, Busuttil insisted that he wanted to draw a line between his own plans for judicial ap- pointments and those carried out under the current and previous governments. "Things could have been done differently in the past, but I do not want to associate myself with past Nationalist governments," he said. "People want a change Simon Busuttil: "I intend to turn the wheels of government around from a race to the bottom to a race to the top." PHOTOGRAPHY BY RAY ATTARD Red toga gaffe 'a mess easily avoided' MIRIAM DALLI IN what Kevin Aquilina, dean of the University of Malta's faculty of laws, has dubbed a "constitutional gaffe", last week's nomination of two magistrates has once again put a spotlight on the archaic manner by which lawyers are appointed to the bench, if not on Labour's ham- fisted treatment of a judicial reform that is losing political oxygen. It is a serious debate on the need for a more transparent and merito- cratic system for judicial appoint- ments that did not just start this week – perhaps not even with the much lauded proposals of the Com- mission for the Holistic Reform of the Justice Sector led by Judge Gio- vanni Bonello, which the govern- ment itself commissioned. The debate goes back to 2011 when then Nationalist MP Franco Debono (today Commissioner of Laws) presented a private member's motion for major reforms in the justice and home affairs ministry. What Debono proposed, and was later endorsed by the commission chaired by former European Court of Human Rights judge Giovanni Bonello, is that there should be a public call and serious scrutiny of applicants' competence by an in- dependent authority before any ap- pointments to the judges' bench. The Bonello Commission was indeed unanimous in condemning "the outdated, archaic and totalitar- ian system" in Malta, which allows the justice minister to handpick togas, often providing golden tick- ets to lawyers who enjoy political favour – a situation that hit fever pitch when a 43-year-old litigation lawyer for GO plc was chosen for magistrate, along with Caroline Farrugia Frendo, daughter of par- liament's Speaker, Anglu Farrugia, who was still two months short of the necessary seven-year experi- ence required for appointment to magistrate. But it was especially controver- sial for Ingrid Zammit Young, who had to turn down the appointment within a few days when the Com- mission for the Administration of Justice made it clear that as chair- person of the Employment Com- mission, she was constitutionally barred for the time, from being a magistrate. "An advocate who is a chairman of the Employment Commission cannot be appointed to the public office of Magistrate as it is the Con- stitution in section 120(4) which precludes this from happening. For an advocate to pass this hurdle, three years have to elapse from the last day when s/he was chair of the Employment Commission," Kevin Aquilina told MaltaToday. Zammit Young saved the govern- ment from having to go back on its nomination; but that still leaves Farrugia Frendo, at 33, apparently making the cut to the judiciary be- cause her father was Labour deputy leader up until December 2012. In Aquilina's words, when decid- ing when a person starts to exercise the profession of advocate, Section 80 of the Code of Organization and Civil Procedure says the seven-year period starts on the day the lawyer takes her oath of office and alle- giance. "[The count] is not from the date of graduation, nor from the date that the President has signed the warrant of advocate, nor from the day when the warrant is handed over by the minister responsible for justice to the advocate in ques- tion. The provisions of the Consti- tution and of the Code are quite clear to my mind in what they say and therefore I see no need of in- terpretation because according to Maltese case law, a provision may not be interpreted when its content is clear." Aquilina added that laws are in- terpreted only when the provision in question is ambiguous: "But this is not the case with regard to the provisions, both in the case of the Constitution and of the Code of Organization and Civil Procedure." "Had the government heeded the [Bonello Commission] and imple- mented its recommendations, these constitutional gaffes would not have happened as the necessary filtering procedures would have been in place to ensure that candidates for the office of magistrate would have been interviewed by a selection board and their application vetted specifically to ensure that prospec- tive candidates would have all the requisites – constitutional and legal – to occupy judicial posts." Implementing the recommenda- tions requires amendments to the Constitution and Franco Debono, who today chairs the Constitution- al Convention that Joseph Muscat had claimed would usher in a 'Sec- ond Republic', said that the conven- tion should be urgently called. "It is of utmost importance that these proposals I made on the 8th November 2011, and which were further discussed upon my ini- tiative in the Consolidation Com- mittee I used to chair (2012), and subsequently copied in the Bonello Report (2013) are immediately im- plemented or discussed and im- plemented within the context of a Why should we re-invent the wheel when the system worked perfectly well? ANNA MALLIA Democracy is a concept that is in a constant state of evolution… we've reached the point where it is time for the Executive to let go GEORGE HYZLER Has Labour forgotten about Judge Bonello's commission proposals?