Appointment of judges

The recent nomination of Dr André Camilleri as a judge by the prime minister, in spite of the reservations expressed by the Commission for the Administration of Justice with regard to his qualifications for such high office, and the even more recent rejection of that nomination by the appointee concerned, laced as it was with strongly worded criticism of the conclusions reached by the Commission, has provoked much debate in legal circles, not least because the prime minister very vociferously appears to have concurred with his nominee's broadside.

The appointment of judges is regulated by the Constitution of Malta. Article 96(1) provides that the judges of the Superior Courts shall be appointed by the President acting in accordance with the advice of the prime minister. In addition to that, however, it has in more recent times been stipulated in Article 101A(11)(c) that one of the functions of the Commission for the Administration of Justice, when so requested by the prime minister, is to advise on any appointment of a judge in terms of the aforementioned Article 96.

Ultimately, however, although the President is practically duty bound to follow the advice of the prime minister under Article 96(1), the prime minister in turn need not heed any advice such as he might request of the Commission for the Administration of Justice under Article 101A(11)(c), unwise as that may be. In matters concerning the appointment of judges, therefore, the prime minister, that 'primus inter pares', reigns supreme.

The prime minister's discretion, however, is not unfettered because it is not just anybody that the prime minister may advise the President to appoint as a judge . In point of fact, the Constitution goes on to provide that a person shall not be qualified to be appointed a judge of the Superior Courts unless for a period of, or periods amounting in the aggregate to, not less than 12 years, he has either practised as an advocate in Malta or served as a magistrate in Malta, or has partly so practised and partly so served.

The key words employed by the Constitution are : "practised as an advocate".

The Constitution does not expand on that because the source for a clear understanding of what that entails is to be found elsewhere, and that is that part of the Code of Organisation and Civil Procedure governing advocates.

In the opening Section 79, one finds that no person may exercise the profession of advocate in the courts of justice in Malta without the authority of the President of Malta granted by warrant under the public seal of Malta.

The profession of advocate, therefore, is to be exercised in the courts of justice in Malta. In fact it is often said that an advocate is "called to the Bar".

The above is fully reinforced by various sections of the law which follow.

Section 80, laying down the oath of allegiance to be taken by any person before entering upon the exercise of the profession of advocate, requires such a person to swear, before the Court of Appeal, in a public sitting of the same court, that he will faithfully and with all honesty and exactness perform the duties of advocate in the courts of justice of Malta, to the best of his knowledge and ability.

Finally Section 81, prescribing the qualifications required for obtaining a warrant, demands in part that such person has for a period of not less than one year regularly attended at the office of a practising advocate of the Bar of Malta and at the sittings of the superior courts.

If any further substance were required to support the argument, I have had another look at my own warrant, granted by President Agatha Barbara on September 27, 1982, and this makes repeated reference to the fact that the warrant is issued in order to authorise the exercise of the profession of advocate in the courts of justice of Malta and its dependencies.

It will therefore be appreciated that, in spite of all the good qualities which Dr Camilleri admittedly possesses, and the undoubted good intentions of the prime minister particularly in the wake of last summer's cataclysmic eruption in the judiciary, it is the Commission for the Administration of Justice which has correctly interpreted the spirit of the law in matters concerning the appointment of judges.