Justice Minister Owen Bonnici yesterday told The Malta Independent that he is ready to shoulder the responsibility and appoint Caroline Farrugia Frendo as a magistrate ad will not seek approval from the Commission for the Administration of Justice.
In comments to this newspaper, Dr Bonnici said: “I will shoulder the responsibility for her appointment. There is no doubt on the eligibility of Dr Carline Frendo and this point is backed by an advice of the Attorney General. I did nothing wrong and apart from that, the Attorney General advised me that I did nothing which is not in conformity with the Constitution.” He added that as much as he respects the Dean of the Faculty of Law Professor Kevin Aquilina, in this particular case the Minister did not agree with him. Prof. Aquilina has gone on record saying that the time Dr Farrugia Frendo spent as a court attorney is a grey area and that Minister Bonnici should refer the issue to the judicial watchdog, which is the Commission for Administration of Justice, headed by the President.
On Monday, in the wake of a controversy following the government’s nomination of Caroline Frendo Farrugia as magistrate, Minister for Justice Owen Bonnici had said that Nationalist governments had in the past appointed a number of judicial assistants as magistrates.
Two Magistrates - Jacqueline Padovani Grima and Saviour Demicoli - were appointed to the bench by the Nationalist Party after serving as Judicial Assistants within the seven- year experience in law practice required for them to be appointed to the post, The Malta Independent has learnt.
Madam Justice Padovani Grima, who graduated as a lawyer in May 1984, became Judicial Assistant three years later and had worked on cases of Family Law. Four years later, July 1991, she was appointed Magistrate and was the first woman to be appointed to the post. She became a judge 21 years later.
On the other hand Magistrate Demicoli graduated as a lawyer in 1984 and after a brief period of private practice he was chosen to become a Judicial Assistant with the Superior Courts. He served in the First Hall of the Civil Court, Commercial Court and with the Office of the Chief Justice. On December 1994 he was appointed magistrate and still serves in the Magisterial courts.
The nomination of Dr Farrugia Frendo, who is the Speaker’s daughter, has led to a political storm on two counts: firstly because of the seven-year period lawyers are to practise law before being considered for the post of magistrate, and secondly as to whether the years she spent working as a court attorney may be considered as part of this seven-year experience.
While it seems that the seven-year limit issue has been overcome as Dr Farrugia Frendo received her warrant seven years ago in February 2009, doubts have now been raised on whether the time she spent serving as a court attorney could be taken as part of the seven-year law practice.
The government is insisting that the role of court attorney and that of a judicial assistant are similar enough for Dr Farrugia Frendo to take up her nomination as magistrate, but the Opposition is claiming that the matter should be taken before the Commission for the Administration of Justice for a final decision to be taken.
Judicial Assistants are expected to assist the Judge or Magistrate in the performance of his/her duties. According to the Code of Organization and Civil Procedure established in 1980, (Chapter 12 of the Laws of Malta) the duties of Judicial Assistants include: “assisting in the judicial process and at the request of the court to participate in the proceedings pending before a court, including any research or other work required therefore, and for the purpose of carrying out such duties and exercise such powers as they may be required or authorised to perform by such court; administer oaths; take the testimony of any person that is produced as witness in any proceedings; take any affidavit on any matter, including a matter connected with any proceedings taken or intended to be taken before any court or any court or tribunal of civil jurisdiction established by law; receive documents produced with any testimony, affidavit or declaration, including in particular a testimony, affidavit or declaration as is referred to in this Code; hold such sittings as may be directed by the court, to meet with the advocates and legal procurators of the parties for the purpose of planning the management of the lawsuit, and to issue deadlines for the submission of evidence, pleadings or other judicial acts by the parties.”
Minister Bonnici categorically denied that there is a "constitutional stumbling block" for Dr Farrugia Frendo to be named a magistrate, as the PN is claiming. In the past days the PN has thrown doubts as to whether the time spent as court attorney can be counted as part of the minimum seven-year period expected of a lawyer before he or she is nominated as a magistrate.
In a statement, the government said this doubt "is absolutely unfounded". It is natural that court attorney work, like that in the Attorney General's office, involved practice in law. A court attorney, per contract, cannot exercise his or her profession in private while working directly with the judiciary. More than this, one of the conditions for eligibility as a court attorney is that the applicant must have practised law for four years.
Minister Bonnici said that the government has consulted with the Attorney General who is also adamant that Dr Farrugia Frendo's nomination is in conformity of the Constitution. He said that he has no doubt that Dr Farrugia Frendo will make a competent magistrate.
Reacting to what Minister Bonnici said, the PN insisted that the proposed appointment of Dr Farrugia Frendo as magistrate should be taken before the Commission for the Administration of Justice to remove any pending doubts on her eligibility.
Speaking at a press conference yesterday, Shadow Minister Jason Azzopardi said these doubts must be removed in the interest of justice, in the interests of the lawyer herself and also to assure the public that everything is in order. Dr Azzopardi reiterated the PN’s call for the case to be taken before the CAJ. “If I were Dr Farrugia Frendo, I would not want my appointment to be tarnished and I would want to remove any shadow of doubt,” he said.
The Nationalist MP said the call for the Prime Minister to present the case before the CAJ, also came from Judge Giovanni Bonello and the Faculty of Laws Dean Professor Kevin Aquilina. He added that Minister Owen Bonnici is showing a level of arrogance by ignoring this criticism. Asked by The Malta Independent on what is the PN proposing to clearly define and distinguish between a Court Attorney and a Judicial Assistant, Jason Azzopardi explained that the Commission for the Administration of Justice can clear out everything. "The Minister and the Prime Minister himself should make sure to clear all doubts which are casting a shadow over this appointment. This is necessary to avoid a judicial mayhem," Dr Azzopardi concluded.