Issue link: https://maltatoday.uberflip.com/i/638406
4 maltatoday, WEDNESDAY, 10 FEbruArY 2016 News Constitutional lawyer: Retain system of judicial nominations but add scrutiny to process MiRiaM Dalli One of Malta's most respect- ed constitutional lawyers has suggested that the system of nominating magistrates by the government be retained, but strengthened with a system of scrutiny. Prof. Ian Refalo, who frequent- ly advises the government and public bodies on administrative and constitutional law issues, has said that improving the system of nominat- ing magistrates and judges should be " c o n s i d - ered care- f u l l y " so as to r e t a i n the ju- diciar y's i n d e - pendence while ad- d r e s s i n g professiona l- ism and capa- bility. The issue of the ap- pointment to judicial of- fice in Malta was once again a hot potato last week after In- grid Zammit Young withdrew her nomination to the judiciary. That followed the Commission for the Administration of Jus- tice's declaration that a chair- man of the employment Com- mission, which she was, was constitutionally barred from the post of magistrate. The Consti- tution has a three-year blackout period on public office for mem- bers of the employment Com- mission, a constitutional body. "It seems to me the whole is- sue is debatable, and certainly there have been past chairmen of the employment Commission who have made good judges; but certainly they did not fall within the parameters of any consti- tutional prohibition. It is after all not the first time that we have seen a nomina- tion to j u d i c i a l o f f i c e b e i n g refused in the l i g h t of ex- p r e s s e d d o u b t s of the c a n d i d a t e satisfying the C o n s t i t u t i o n a l requirements," Prof. Refalo said. The same constitutional ob- stacle was also raised by Justice Minister Owen Bonnici, who told the CAJ during its hearing on Zammit Young, that Magis- trate Francesco Depasquale was appointed just two and a half years after he resigned a one- month tenure on the employ- ment Commission, back in Oc- tober 2008. "The whole incident and the unnecessary focus on the defini- tion of public office in the Con- stitution detracts from a more serious consideration of the is- sue of appointment to judicial office which certainly deserves a more considered treatment. My perspective is that there seems to be three generally acknowl- edged routes to the judicial of- fice – electoral, by professional examination, and nominative," Prof. Refalo said. Malta has traditionally had the government nominating mem- bers of the judiciary. "For two centuries it may probably be said to have served Malta well. Can it be improved? Certainly and probably. But improvement comes by considering carefully what we desire to achieve and how best to retain independence and marry it with a nominee be- ing professional and capable. "This can be done even within the obtaining rules, with some slight adaptation, if we accept that the nomination may be sub- ject to some form of scrutiny without pillorying the person making the nomination or the person nominated. Difficult but not impossible." Need for definition of Ombudsman's role The dean of the Faculty of Laws at the University of Malta, Kevin Aquilina, has called for amendments to the Constitu- tion to clarify whether the role of the Ombudsman constitutes that of a public officer or not. Bonnici also raised the fact that even Ombudsman Joseph Said Pullicino had been ap- pointed in 2005 – by unanimous resolution of the House – after having served as chairman of the Broadcasting Authority, a constitutionally appointed au- thority. The Constitution bars any BA member from eligibility for "any public office" with- in a period of three y e a r s c o m - menc i ng on the last day of hold- ing office. The provi- sion is a 're- volving doors' mechanism to prevent commis- sion members from currying favour with the government of the day. "The position is not clear," Aquilina told MaltaToday when asked whether a member of an authority or commission could also serve as an Ombudsman. Like the Auditor General and the deputy Auditor General, the Ombudsman is an Officer of Parliament. But Aquilina ex- plained that the Ombudsman, in terms of the Ombudsman Act, is an Officer of Parliament and un- like other officers of parliament, the Ombudsman is not listed as a public officer. "Ideally, to clarify matters, the Ombudsman should be specifi- cally listed or excluded in the Constitution from being a pub- lic officer. The provision in the Constitution on the Om- budsman, section 64A, does not clarify the m a t t e r , " A q u i l i n a added. S a i d P u l - l i c i n o was ap - p o i n t - ed Om- b u d s - man by u n a n i - mous reso- lution of the House of Rep- resentatives on 12 December, 2005. The appointment came straight after he sat on the Broadcasting Authority as chair- man for three years, a position he held up to December 2005. Said Pullicino was reconfirmed for a second term in March 2011. Lawyers insist new judges should not have business interests Chamber of Advocates proposes that new judges and magistrates should have minimum 15 years' experience, including 10 spent practising in court TiM DiaCono new judges and magistrates should not have any business or commercial interests, the Chamber of Advocates is insisting. "Business interests are absolutely incompatible with judicial posi- tions, as they risk compromising the independence of the judiciary and give rise to speculation about alleged partiality," Chamber presi- dent George Hyzler told a press conference. "However, reality must also be taken into account, and the fi- nancial package and pensions of judges and magistrates must be ad- dressed." He was addressing the launch of a position paper, in which the Cham- ber proposed that new magistrates and judges must have a minimum of 15 years' legal experience, up from the current 12 for judges and seven for magistrates. He said that at least 10 of these years must be spent practising in a Maltese court. "Raising the age limit will allow nominees to garner more legal ex- perience, independence of thought, financial stability and overall matu- rity," he said, while urging the gov- ernment to introduce these reforms as "urgently as possible". The position paper proposes that judges and magistrates be selected by a permanent authority com- posed of the Attorney General, the Chief Justice, and three lawyers ap- pointed by the Prime Minister, the Opposition leader and the Cham- ber of Advocates. The authority will be tasked with scrutinising every nominee, but their recommendations would re- main confidential so as to safeguard the nominees' reputations. He insisted that the authority should not take the personal rela- tionships of nominees into account when deciding on their eligibility. The system of judicial appoint- ments was thrown into the spot- light following the nominations of Ingrid Zammit Young and Caroline Farrugia Frendo as magistrates. Hyzler refused to comment on ei- ther case. Prof. Refalo Ombudsman Joseph Said Pullicino George Hyzler (centre): "Business interests are incompatible with judicial positions…"