Red toga gaffe ‘a mess easily avoided’

In what Kevin Aquilina, dean of the University of Malta’s faculty of laws, has dubbed a “constitutional gaffe”, last week’s nomination of two magistrates has once again put a spotlight on the archaic manner by which lawyers are appointed to the bench, if not on Labour’s ham-fisted treatment of a judicial reform that is losing political oxygen.

It is a serious debate on the need for a more transparent and meritocratic system for judicial appointments that did not just start this week – perhaps not even with the much lauded proposals of the Commission for the Holistic Reform of the Justice Sector led by Judge Giovanni Bonello, which the government itself commissioned.

The debate goes back to 2011 when then Nationalist MP Franco Debono (today Commissioner of Laws) presented a private member’s motion for major reforms in the justice and home affairs ministry.

What Debono proposed, and was later endorsed by the commission chaired by former European Court of Human Rights judge Giovanni Bonello, is that there should be a public call and serious scrutiny of applicants’ competence by an independent authority before any appointments to the judges’ bench.

The Bonello Commission was indeed unanimous in condemning “the outdated, archaic and totalitarian system” in Malta, which allows the justice minister to handpick togas, often providing golden tickets to lawyers who enjoy political favour – a situation that hit fever pitch when a 43-year-old litigation lawyer for GO plc was chosen for magistrate, along with Caroline Farrugia Frendo, daughter of parliament’s Speaker, Anglu Farrugia, who was still two months short of the necessary seven-year experience required for appointment to magistrate.

But it was especially controversial for Ingrid Zammit Young, who had to turn down the appointment within a few days when the Commission for the Administration of Justice made it clear that as chairperson of the Employment Commission, she was constitutionally barred for the time, from being a magistrate.

“An advocate who is a chairman of the Employment Commission cannot be appointed to the public office of Magistrate as it is the Constitution in section 120(4) which precludes this from happening. For an advocate to pass this hurdle, three years have to elapse from the last day when s/he was chair of the Employment Commission,” Kevin Aquilina told MaltaToday.

Zammit Young saved the government from having to go back on its nomination; but that still leaves Farrugia Frendo, at 33, apparently making the cut to the judiciary because her father was Labour deputy leader up until December 2012.

In Aquilina’s words, when deciding when a person starts to exercise the profession of advocate, Section 80 of the Code of Organization and Civil Procedure says the seven-year period starts on the day the lawyer takes her oath of office and allegiance.

“[The count] is not from the date of graduation, nor from the date that the President has signed the warrant of advocate, nor from the day when the warrant is handed over by the minister responsible for justice to the advocate in question. The provisions of the Constitution and of the Code are quite clear to my mind in what they say and therefore I see no need of interpretation because according to Maltese case law, a provision may not be interpreted when its content is clear.”

Aquilina added that laws are interpreted only when the provision in question is ambiguous: “But this is not the case with regard to the provisions, both in the case of the Constitution and of the Code of Organization and Civil Procedure.”

“Had the government heeded the [Bonello Commission] and implemented its recommendations, these constitutional gaffes would not have happened as the necessary filtering procedures would have been in place to ensure that candidates for the office of magistrate would have been interviewed by a selection board and their application vetted specifically to ensure that prospective candidates would have all the requisites – constitutional and legal – to occupy judicial posts.”

Implementing the recommendations requires amendments to the Constitution and Franco Debono, who today chairs the Constitutional Convention that Joseph Muscat had claimed would usher in a ‘Second Republic’, said that the convention should be urgently called.

“It is of utmost importance that these proposals I made on the 8th November 2011, and which were further discussed upon my initiative in the Consolidation Committee I used to chair (2012), and subsequently copied in the Bonello Report (2013) are immediately implemented or discussed and implemented within the context of a Constitutional Convention,” he said.

Chamber of Advocates president George Hyzler – who sits on the Commission for the Administration of Justice and was a former government minister under prime minister Eddie Fenech Adami – said the Chamber was of the firm belief that the more that the Cabinet distances itself from the selection process the better it would be for a healthy democracy. 

“The events that have unfolded over the last few days have shown how important it is to have a proper screening process in place prior to nominations being announced,” Hyzler said.

“We know that some do not share our views and are tied to the age-old practice that the Executive knows best and should have the unfettered discretion to nominate and appoint members of the judiciary. We respect that point of view but cannot agree with it.” 

The Chamber will soon publish a position paper on the subject that should provoke a healthy discussion. 

“Democracy is a concept that is in a constant state of evolution and we believe that we have reached the point where it is time for the Executive to let go. Had our advice been taken by the powers that be we may have been spared this week’s unfortunate mess,” he added.

But as Hyzler pointed out, not everyone sees the need for a reform. “I am not in favour of another system,” lawyer Anna Mallia, an outspoken advocate who is a known face on television, told MaltaToday. “Let us not forget that we had members of the judiciary who were appointed right at the lapse of the minimum requirements; others who never practised at the law courts; others who only did one branch of the law only; others who were in politics; others who were politically appointed at the European Court of Justice and others who had no knowledge of EU law and were politically appointed as judges of the European Court of Justice.  So why now all the sudden keenness to change the system?”

Mallia argued that the latest controversy could have easily been avoided had the government done the necessary checks that needed to be done and consulted the Attorney General beforehand “and avoid the hype from the opposition”.

“Why should we re-invent the wheel when the system worked perfectly well?  The changes that need to be done are about the removal, and not the appointment, of the judiciary.”