The André Camilleri dilemma

The administration of justice has unfortunately attracted undue negative attention once again, following the government's nomination of André Camilleri to the bench.

The government opted to refer the appointment to the Commission for the Administration of Justice for the first time, inviting it to scrutinise the candidate and say whether it deemed him fit for office.

The prime minister undoubtedly chose this path to appear more transparent after the shockwaves experienced this summer with the judicial bribery case.

But the commission declared itself against the appointment of Dr Camilleri to the judiciary on a technicality rather than raising any questions of competence or integrity.

According to the Constitution, for a person to qualify for appointment to the bench, he must be a practising lawyer with a minimum 12 years' experience.

Dr Camilleri, 50, has surely been a lawyer for twice the time but it is known that his practice generally did not include litigation and this, it seems, was the problem with the commission, which felt that his position could be a precarious one, since it could subsequently be challenged before the courts by interested parties.

What happened afterwards was, for a time, shrouded in mystery. It is clear that the government was taken aback by the commission's recommendations. It was quite determined to proceed with the nomination and Dr Camilleri was appointed judge by the President on October 8.

However, the judge found himself in a most awkward position. He then followed the only acceptable path open to him. Before taking up office, he again wrote to the commission asking it to reconsider its recommendations after allowing him to give proof of his legal practice.

Dr Camilleri's request was even backed by the government. Strangely, his request was summarily denied, leaving him no option but to gracefully bow out.

All this has created a dilemma which only just falls short of a judicial crisis. The issue should be analysed from two perspectives. Primarily, the commission's recommendations should be assessed as to whether they hold water in today's circumstances.

The terms of reference of a legal practitioner have changed somewhat over the years. Up to a few years ago, the traditional and only function of an advocate was to take up briefs before the court. Even today a good percentage of lawyers practise their profession in this way.

However, over the past 20 years we have seen the evolution of a new breed of lawyers who no longer follow the traditional role and yet are still regarded as prominent and respected members of the bar.

In Malta today, we have about 650 licensed lawyers. More than half refrain from practising before the courts, which means that more than 350 lawyers work in the financial or maritime sectors and are experts in their field.

Many prominent lawyers today never set foot in our courts but are nonetheless highly regarded and contribute in no small manner to their profession.

Thus, if one eliminates all these lawyers one will be excluding from the bench more than half the lawyers in Malta, regardless of their capabilities.

To these, one must also add the numerous other lawyers who work as full-time lecturers or are employed with the public sector, further reducing the pool of available candidates drastically.

From the remaining few, one must also reduce all those members of the profession who have not as yet practised law for a minimum of 12 years as required.

I have gone through the legal directory to see for myself how many lawyers remain available for appointment and found, to my amazement, that there are fewer than 70 who now fulfil the strict criteria laid down by the commission, or around 10 per cent of all practising lawyers.

Thus, in the light of all this, I strongly believe that the recommendations made in this day and age are not only impractical but inappropriate. Parliament should therefore be invited to review the relative clause in our Constitution.

As to the second perspective, I feel the government took the wrong approach. It was under no legal or moral obligation to refer the issue to the commission. In fact it has never been the practice to do so. The selection process has always been the prerogative of the prime minister and rightly so.

But if the prime minister, of his own accord, opts to condition his prerogative, then that is surely another matter. Once the prime minister referred the issue to the commission, it could not ignore its recommendations because that would put everyone in the most awkward position.

The commission is headed by the President who would be put in a most difficult position if he had to appoint a person he would have previously rejected as a member of the commission. This would make a mockery of his functions.

Furthermore, the newly-appointed judge would have to face the traditional address from the president of the Chamber of Advocates at the inaugural sitting.

This too would prove an uncomfortable exercise since the chamber president, as a member of the commission, would have participated in the collective decision regarding the judge's nomination.

All this would undoubtedly create a huge strain on the administration of justice. This was therefore an unfortunate incident, which needs to be urgently rectified by legislative intervention.

The need has arisen for parliament to revisit the relative provisions of the Constitution dealing with judicial appointments and amend them, where necessary, to bring them in line with the times.