The government faced a major controversy over the nomination of two new magistrates. Justice Minister Owen Bonnici insists the choice was not politically motivated. He speaks to Caroline Muscat.

Judicial reform was included in the Labour Party’s electoral manifesto. What has been done so far?

We are committed to reforming the justice sector holistically, meaning not only in terms of the institutional changes we need to do but also in terms of increasing quality and expediting court procedures… the Bonello Commission came up with 450 proposals. These were then turned into legislation and, upon further discussion with practitioners and stakeholders, we decided to implement these measures gradually, sector by sector.

What did you prioritise?

The priority has always been the length of proceedings. That, and improving the quality of our judicial system. We have introduced new rights: the right of disclosure during arrest, the right to appeal a decision of the Attorney General in drug cases, and the new law for the rehabilitation of drug abuse victims.

To expedite court proceedings, just last Monday we put in place a whole package of amendments to civil procedure. We also introduced the concept of court attorney. A lot has been done and a lot more will be done by the end of this legislature.

The government is facing a major controversy over the latest two nominations for the judiciary: Ingrid Zammit Young and Caroline Farrugia Frendo. Your first reaction was to distance yourself from the choice, saying it was approved by Cabinet. Now you insist on defending these nominations. Is this a situation you created or was it created for you?

I nominated them. That’s my responsibility. It was my decision that was approved by Cabinet… I’d like to say how I decided to nominate those two learned lawyers. First, I wanted to increase female participation in the judiciary. I know this is a controversial point: some agree, some don’t. However, when I was appointed parliamentary secretary two-and-a-half years ago, I found that only 35 per cent of the judiciary were women. This was not representative of society…

But the controversy did not erupt because they were women but because of doubts over the decision taken. So let’s focus on the decision because at the end of the day there are lot of competent female lawyers who could have been nominated.

Certainly. I’ve asked other female lawyers to join the judiciary, including people very close to the families of shadow ministers in the current legislature, and they refused. It’s their right to refuse. Trust me, I did focus on increasing the number of female members of the judiciary. In fact, it’s increased by almost 10 per cent in the past two-and-a-half years.

Let’s focus on these two particular nominations…

Dr Zammit Young was nominated by the Prime Minister and the Leader of the Opposition to serve as chairman of the Employment Commission. She’s someone who has the trust of both… she also served as consultant to former justice minister Carmelo Mifsud Bonnici. So I thought she had all the qualities to attract consensus.

I’m aware reference was made to her father. That’s very unfortunate. Like most, Dr Zammit Young comes from a family with members from both sides of the political spectrum…

Let’s focus on your choice of Dr Zammit Young…

I mentioned politics because I was accused of choosing her because her father was a canvasser of mine. That’s a double lie. It’s not true... Dr Zammit Young’s father had nothing to do with her nomination.

The Commission for the Administration of Justice found Dr Zammit Young’s appointment could possibly not be in line with the Constitution. How can you still continue to defend this choice?

Let’s split the issue of competence and legal preparation from the issue of legal eligibility or impediment. On competence, Dr Zammit Young is a senior lawyer with one of the leading telecommunications companies in the private sector. I believed at the time, and I still believe, that the judiciary should include people with a commercial background to instil a sense of company atmosphere… [and] she has almost 18 years’ experience in court.

Regarding eligibility, this is about legal interpretation. There’s a similar prohibition in the Constitution for whoever is chairman of the Broadcasting Authority as there is a prohibition for whoever is chairman of the Employment Commission [a member of the Employment Commission cannot be appointed to any public office for three years]...

In the previous legislature, the government interpreted that provision in a way which allowed [former judge] Joseph Said Pullicino to become Ombudsman overnight... I agree with that interpretation. When I nominated Dr Zammit Young, to my mind there was an almost identical precedent.

Like most, Dr Zammit Young comes from a family with members from both sides of the political spectrum

…But when doubts were raised I immediately referred the matter to the commission. And the commission said there’s a possibility – so it’s not a certainty – of an impediment. Facing this, she withdrew her nomination.

You know the commission will only go as far as saying a possibility exists. It is up to the Constitutional Court to decide what is unconstitutional.

I disagree. If the commission had believed she was unquestionably ineligible, it would have said ‘absolute ineligibility’. That is an argument which the Leader of the Opposition is making…

It’s not only the Leader of the Opposition.

Ok. But I know that he mentioned in Parliament that the commission was polite in the way it wrote its opinion. I disagree. Had the commission believed there was an impediment, it would have said there is an outright impediment. The fact that the commission – made up of the Chief Justice, the president of the Chamber of Advocates, two senior judges, two magistrates and what have you – said there was the possibility of an impediment means exactly that. So, in the same way that there’s a possibility of an impediment, it can be interpreted that there is no impediment. However, Dr Zammit Young took the wise decision, a correct decision, a morally correct decision, to withdraw her name.

In the case of Andrè Camilleri’s nomination in 2002, the commission used very similar language to show the possibility of a breach of the Constitution.

There was a difference. In Dr Camilleri’s case, the commission said “tonqos kwalità f’Dr Camilleri” (a quality that’s lacking). [What the Commission had actually said was “hemm il-possibilità li tonqos fih il-kwalità” (the possibility that he lacks the quality)].

… At the time, [former prime minister]) Eddie Fenech Adami had decided to steamroll; he wrote to the commission [saying] that in spite of its advice he was going to appoint Dr Camilleri as a judge…

You made a correct argument, that the commission can only give advice. A final decision can be given by the Constitutional Court. We decided to stand by the advice of the commission from the word ‘go’…

At the same time, with Dr Farrugia Frendo’s nomination, you have the best legal minds – Kevin Aquilina, dean of the Faculty of Law; George Hyzler, president of the Chamber of Advocates, and the person you chose to advise you on judicial reform, former judge Giovanni Bonello – telling you that it is advisable to seek certainty from the commission. Yet you refuse.

With Dr Farrugia Frendo, it’s not about legal interpretation but whether she has practised as a lawyer for seven years, including the period during which she served the country as a court attorney.

A court attorney is a lawyer. It’s obvious; there’s no doubt. Although I respect these three gentlemen… I disagree with them. But it’s not only me who disagrees… I took the advice of the Attorney General, also a member of the commission…

The Chief Justice, during the opening speech of this forensic year, mentioned the issue of court attorneys and referred to them as “avukati” (lawyers)… Why should I go before the commission on something that’s obvious?

All lawyers know what I’m saying is correct. I think that when all is said and done, everybody will come to the same conclusion…

If you’re so sure, what have you got to lose by going to the commission and obtaining its seal of approval?

It’s not an issue of having something to lose…

The best legal minds in the country are saying ‘if there is doubt, err on the side of caution’. You are risking a situation where Dr Farrugia Frendo’s position may be challenged in court.

I have to be responsible for what I do. In my past 11 appointments there were issues raised about people I nominated. Not one of them was referred to the commission. [Same] with the previous legislature… We can’t refer all cases to the commission.

We’re not talking about all cases. We’re talking about this one.

With Dr Zammit Young there was an issue of legal interpretation and so we didn’t take any risks. In Dr Farrugia Frendo’s case, it’s obvious that a court attorney is a lawyer [and so would meet the minimum number of years required practising law by the time she is appointed]. There’s no room for doubt and there’s no reason why I should go to the commission…

One duty of a court attorney is writing memorandums on pending law suits, concerning points of fact and points of law. Would you give such duty to a person who’s not a lawyer? Another is to assist the judge in drafting court orders. This is the exercise of the legal profession in its most intimate and correct interpretation.

You said you asked the Attorney General for advice on Dr Farrugia Frendo. Did you do the same thing for Dr Zammit Young?

…I consulted other people.

You are being criticised for a lack of consultation in these nominations. The Chamber of Advocates said you stopped seeking its views. The Opposition put forward similar criticism. Still, you said you will not go to the commission. Why this persistence?

I’m a person who consults a lot and I’ve consulted other people on those names, not because I have something to hide but because [the] responsibility is on my shoulders. I don’t want to shirk responsibility.

It is your responsibility even when you consult.

I consulted various people on the names before I nominated them to Cabinet; people who have responsibilities in this country. But I emphasise that it’s my responsibility in the end.

Why have you chosen to consult other people versus those bodies that bring together the best, for example the commission, the Chamber of Advocates…

Because in Malta it’s not common practice to refer each nomination to the commission. Since the commission was set up, a number of generations ago [22 years ago], only three nominations, including Dr Zammit Young’s, were referred.

But now an appeal is being made to consult the commission on Dr Farrugia Frendo’s nomination and you’re still saying no.

There’s no room [reason] for going [there] because there’s no doubt about her eligibility. There’s absolutely no argument. I respect Giovanni Bonello, who I hold as my dear friend. I respect Prof. Aquilina, who I hold as my dear friend. But they are not correct. And I’m not going to risk tarnishing the reputation of a lawyer, or someone who is going to become a magistrate, on an opinion that’s incorrect.

Don’t you think the situation is tarnishing her reputation even more?

Go and consult other people. Go and consult the chamber. I suggest you meet them privately and see whether they agree that a court attorney is a lawyer exercising his profession.

Are you saying the official position of the chamber is not what is being told to you?

No. The chamber has long been advocating that every nomination should go before the commission… it says the same for this case.

When the Opposition speaks about consultation, I take it with a huge pinch of salt.

A court attorney is a lawyer. It’s obvious; there’s no doubt

You keep saying you take the Opposition with a pinch of salt. But the Opposition includes MPs who are there to represent the people who elected them. They have a right to be consulted.

The Opposition leader tweeted that the President should look into judicial appointments. Is that the way to show respect to the President? He should have written to the President and asked for another meeting…

The Opposition is failing to act responsibly. All serious lawyers I speak to are disgusted at the way the Opposition has turned the issue of whether a court attorney is a lawyer into a political football…

The government has appointed to the judiciary people with political links to the Labour Party, like Wenzu Mintoff, Joe Mifsud, Monica Vella (PL deputy mayor) and now Dr Farrugia Frendo (daughter of the Speaker). There is the perception that reform is being delayed to ‘balance the situation’ after 25 years of a Nationalist administration appointing ‘their own’.

That’s incorrect on two counts. The previous government appointed good people to the judiciary. There are people who come from a Nationalist background, there were former parliamentary secretaries who weren’t re-elected and then appointed to the Bench. There was a brother of a minister who was appointed chief justice. But they were all good people.

They all delivered their best and I thank them for agreeing to serve our country. Being a member of the judiciary isn’t a reward or an easy ride…

But you do accept the pattern in terms of political affiliations…

I can’t concede that because those 11 [appointments] include people who were appointed to official constitutional positions by the previous administration. So it’s not true.

One of the main points being pressed is the urgent need for changes in nominations to the judiciary. This is one of the promises made by the Labour Party. When can we see this implemented?

First of all, is the Opposition credible when speaking of judges’ appointments and more scrutiny? They’ve been in government…

They’re not in government now; you are. We’re discussing the change you promised.

Yes, but they’re the ones pointing fingers…

…They’re not the only ones.

When you point one finger, you have three pointing at you. They’ve been in government for 25 years and never felt the need to change the manner in which the judiciary is appointed.

Secondly, we’ve had controversial appointments in the past and I’ve never heard [that] Simon Busuttil lifted a finger to say things had to be changed.

The third issue: in the last electoral [programme] and the previous one, which Dr Busuttil wrote, he didn’t promise change in the way the judiciary is appointed if the PN won the election. Had they won, we wouldn’t have been discussing such change.

That’s possibly why you are in government and they are not. So let’s move forward.

We promised this. We promised more than that. We promised a change in the way the judiciary is appointed, in the way it’s accountable, better conditions, particularly those related to pension rights for the judiciary…

The Bonello Commission report was completed at the end of 2013. Since then, I’ve been involved in a permanent consultation exercise on three very sensitive issues with all the relevant stakeholders. I can assure you I have come up, after this consultation, with a way forward. I’m going to present the legislative proposal to Cabinet for approval to become legislation…

The three issues we’re talking about are…

Appointments, accountability… we have a situation today where, if a judge has done something wrong, the commission has the option of a slap on the wrist… or impeachment by Parliament… There is no middle-of-the-road approach…

Any mechanism must ensure the judiciary is judged by its own peers…

On pensions… The current members of the judiciary are making huge financial sacrifices. I know judges who halved their income when joining the judiciary. They do it because they love the profession… But, should it be that way? Shouldn’t we focus on attracting the best minds with better conditions? I know it will be controversial. I know there will be people who say it’s not fair that a judge gets a better pension. But, it’s the correct thing to do. I’m inviting the Opposition to agree with us on the matter.