The controversial nomination of two new magistrates was a “double constitutional gaffe”, according to the dean of the Faculty of Laws.

Leading constitutional expert Kevin Aquilina also believes the matter did not need to be referred to the Commission for the Administration of Justice for advice because the Constitution was “crystal clear” on the matter. Meanwhile, Opposition leader Simon Busuttil said in a statement yesterday President Marie Louise Coleiro Preca had assured him she would not be proceeding with the oath of office of the two appointees in view of the controversy surrounding the nominations.

The President’s Office said in a statement late in the afternoon the President had been informed that, in the case of one of the nominations, the appointment would go ahead in line with the Constitution. In the other case, “the Commission for the Administration of Justice will be consulted”, it added.

On Wednesday, the government was forced to seek advice over whether the appointment of Ingrid Zammit Young would be in breach of the Constitution because of a clause that appears to prohibit her from being sworn in as magistrate in view of her position as chairwoman of the Employment Commission.

The government also defended the nomination of the 32-year-old daughter of House Speaker Anġlu Farrugia, a former deputy leader of the Labour Party.

Caroline Farrugia Frendo was nominated to the Bench just three days after completing the statutory seven-year experience as a practising lawyer.

The nomination of Dr Zammit Young, a lawyer with Go plc, raised doubts over whether she is constitutionally eligible to be made a magistrate.

According to Prof. Aquilina, the matter was so clear there was no need to seek any interpretation because the clause in question was not open to interpretation.

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”.

“A careful reading of the clause leaves absolutely no doubt that Dr Zammit Young should have been automatically disqualified from being considered for the role,” he said.

In the case of Dr Farrugia Frendo, Prof. Aquilina said the seven years practice demanded by the Constitution started being calculated from the date a lawyer took the oath of allegiance and the oath of office (see Talking Point on the back page).

Dr Farrugia Frendo took her oath of allegiance and of office on March 16, 2009, although the Justice Ministry would not confirm it.

“Her situation is not as worrying because, if there’s a week or a month for the seven years criteria to be met, the government will just have to postpone the swearing in ceremony,” Prof. Aquilina said.

His view on the constitutional aspects were shared by several lawyers and members of the judiciary who spoke to the Times of Malta on condition of anonymity. They agreed that the clause was not open to interpretation and wondered whether the referral to the Commission for the Administration of Justice was a way of backing out of the appointment without being seen to be making a U-turn.

Dr Busuttil met the President, who chairs the Commission for the Administration of Justice, over the appointments, which were endorsed by the Cabinet. He said the President had assured him “that she will not proceed with the oath of office of the two appointees”.

In a statement after the meeting, Dr Busuttil said he had expressed his “serious concern” over the appointments on grounds that they appeared to have been made in breach of the Constitution.

He said the nomination of Dr Zammit Young was “invalid because she is constitutionally precluded from holding the office of magistrate”.

“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,” he said.

Regarding the appointment of Dr Farrugia Frendo, Dr Busuttil said that when she was nominated to the post by the Justice Minister she had not yet satisfied the seven-year constitutional requirement.

‘Update minimum experience clause’

Criminal lawyer Joe Giglio told the Times of Malta yesterday the time was ripe for an overhaul of the minimum experience required for a legal practitioner to be named magistrate.

He felt that, beyond this week’s controversy, the seven-year practice making one eligible to be appointed magistrate was included in the Constitution at a time when the maximum jail term magistrates could hand down was six months. “This is nothing when compared to the complexity of cases magistrates must hear nowadays as well as the increased remit of up to 12 years imprisonment,” Dr Giglio said.

“It is about time we revise the criterion to reflect the more serious cases that magistrates are having to hear and decide on,” he added.