The controversial nomination of Caroline Farrugia Frendo as magistrate may have hit another constitutional stumbling block, a member of the Commission for the Administration of Justice has told the Times of Malta.

Members of the commission have internally raised doubts over whether the time spent by the Speaker’s daughter as a court attorney can be counted under the constitutional requirement that appointees must have spent seven years in legal practice.

However the Ministry of Justice (see below) said such doubts were unfounded that the time served as court attorney counted for the nomination of magistrates.

Court attorneys help members of the judiciary draft their rulings.

“According to one of the clauses in the contract of employment signed by court attorneys, they are specifically bound not to practise as lawyers,” said the commission member, who preferred to remain anonymous.

“This means that the period spent as a court attorney cannot be counted as part of the seven-year practice required by the Constitution.”

The commission last week declared there may be a constitutional obstacle to appointing another magisterial nominee, Ingrid Zammit Young, because she had occupied a public post as chair of the Employment Commission. She has since withdrawn.

The Times of Malta has verified the existence of the clause that relates to Dr Farrugia Frendo, over whom the question had already been raised of whether she satisfies the seven-year requirement.

The government did not answer the question on whether it had sought the advice of the Attorney General on the latest legal point.

This means that the period spent as a court attorney cannot be counted as part of the seven-year practice required by the Constitution

However, it made clear that it did not agree with this interpretation and would go ahead with Dr Farrugia Frendo’s nomination.

“Court attorneys, like lawyers at the Office of the Attorney General, cannot practise their profession privately but their work still involves the practice of law,” a spokesperson for Justice Minister Owen Bonnici said.

In Malta’s recent legal history there had been nominations of judicial assistants to the Bench, the ministry said, adding that these provide an analogous function to that of court attorneys.

One constitutional lawyer who spoke to this newspaper said that while this was a moot point, because court attorneys were relatively new in Malta’s legal system, they could not be compared to lawyers at the AG’s office or to judicial assistants.

“Court attorneys do not practise law but assist judges. On the other hand, lawyers at the AG’s office practise law as they prosecute in court. Surely it is not the minister’s job to interpret the law as there other fora for that purpose,” the lawyer said.

Counting her time spent as court attorney, the Speaker’s daughter will only become eligible to become magistrate in the middle of next month, seven years after taking the oath of allegiance and oath of office as a lawyer.

However, the Times of Malta is informed that Dr Farrugia Frendo stopped working in her private practice last November when she started working as a court attorney.

According to the Constitution, it is the President who appoints magistrates following the advice of the Prime Minster. The President is also the guardian of the Constitution.

The Constitution states: “A person shall not be qualified to be appointed to or act in the office of a magistrate of the inferior courts unless he has practised as an advocate in Malta for a period of, or periods amounting to the aggregate to, not less than seven years.”

Dr Bonnici has insisted that Dr Farrugia Frendo will be appointed in full respect of the provisions of the Constitution.

He has so far not stated when exactly she will have reached the seven-year threshold.

CASE SHOULD BE REFERRED TO COMMISSION FOR ADMINISTRATION OF JUSTICE - PN

In a statement this morning, the Nationalist Party said that in view of the new doubts raised, the Justice Minister should refer the case to the Commission for the Administration Justice for its advice.

It again requested the President, both as President of the Republic and as President of the Commission for the Administration of Justice, to ensure that the Constitution  was respected and insisted that all all appointments to the judiciary should be suspended until a reform in the way judicial appointments were made was carried out.

This reform, it said, had become urgent because of the abusive way in which the government was appointing members to the judiciary.

DOUBTS ARE UNFOUNDED - MINISTRY

The Ministry of Justice said the doubts that had been cast about the period served as court attorney were 'absolutely unfounded'.

"It is natural that the work of a court attorney, as in the case of lawyers who work in the Attorney General's Office , involves the practice of law. Indeed, according to his contract, a court attorney cannot work as a lawyer in the private sector because he works for the judiciary.

"Furthermore, one of the criteria for the appointment of court attorney is that the applicant must hold a warrant to practice  as a lawyer with at least four years experience," the ministry said.   

The situation at the Office of the Attorney General was the same, and yet several judicial assistants had been made magistrates.The government said it had consulted the Attorney General on the matter.