Updated - The government has published a letter sent today by Prime Minister Joseph Muscat to President Marie-Louise Coleiro Preca asking the Commission for the Administration of Justice to investigate whether lawyer Ingrid Zammit Young is eligible to be appointed magistrate.

The request follows controversy which erupted yesterday after the nomination was announced by the government. Legal sources and the Opposition have insisted that the lawyer is legally precluded from becoming magistrate because she served as head of the Employment Commission and such officers cannot hold a public post for three years.

Dr Muscat in his letter said there may have been precedents and similar cases which would help in the interpretation.(see letter in pdf below)

The president is the chairman of the Commission for the Administration of Justice.  

Earlier today, Opposition leader Simon Busuttil said he had been informed by the President that she would not be  proceeding with the swearing-in of the two lawyers nominated as magistrates yesterdayy.

He said in a statement that he met President Marie Louise Coleiro Preca this morning over the two new appointments, which had been endorsed by Cabinet.

He requested the meeting and called on the President to look into the constitutionality of the nominations.

I have asked the President, as guardian of the Constitution, to check the constitutionality of the two appointments to the bench.

— Simon Busuttil (@SimonBusuttil) February 4, 2016

Following his meeting with President Coleiro Preca, Dr Busuttil said:

"I have transmitted to the President the serious concern of the Opposition over these appointments on the grounds that they appear to have been made in breach of the provisions of the Constitution.

"Regarding the appointment of Ingrid Zammit Young, it is clear that her appointment is invalid because she is constitutionally precluded from holding the office of magistrate as she chairs the Employment Commission.

"Moreover, the Commission for the Administration of Justice can only look into whether a person is qualified to hold office but can do nothing if the person is constitutionally precluded from being appointed in the first place.

"Regarding the appointment of Caroline Farrugia Frendo, who took her oath to practice law in March 2009, it is clear that the constitutional requirement of seven years has not been respected and therefore even her appointment is invalid."

I have been reassured by the President that she will not proceed with the oath of office of the two appointees."

OFFICE OF THE PRESIDENT CLARIFIES

In a statement in the afternoon the Office of the President said that in the case of one of the nominations, the appointment would be made as laid down in the Constitution while, with regard to the other nomination, the Commission for the Administration of Justice would be consulted.

The Office did not say when the appointment of the former (Dr Farrugia Frendo) would be made (She will pass the seven-year threshold next month).

PN'S REPLY

In a reply to the statement by the Office of the President, the PN said it welcomed the confirmation that new appointments could not be made unless they were according to the Constitution. 

At this stage, neither of the nominations was valid according to the Constitution. Ingrid Zammit Young's appointment was precluded by the Constitution while Dr Caroline Farrugia Frendo, to date, had not been a lawyer for seven years and would only achieve that in March.

Once the two nominations did not conform to the Constitution, the Prime Minister should withdraw them, the party added. 

The Constitution lays down that “a member of the Employment Commission shall not, within a period of three years commencing with the day on which he last held office or acted as a member, be eligible for appointment to or to act in any public office.”

The government pointed out yesterday, however, that this was not a blanket ban as the constitution also says that:

"Unless the context otherwise requires, the public service includes service in the office of judge of the Superior Courts, service in the office of Auditor General and Deputy Auditor General, service in the office of magistrate of the Inferior Courts and service in the office of a member of the Malta Police Force."