Fundamental difference between 'advocate' and 'lawyer'

I was very well aware that the opinions which I expressed in my contribution "Appointment of judges" in a recent Talking Point would be equally applauded by some, while considered unduly provocative by others.

Above all else, I foresaw that they would open the floodgates to a whole debate on what the practice of the profession of advocate, those key words in the Constitution, truly entails, and this in a manner going way beyond the core argument which centred upon the qualifications laid down by our constitutional law for an appointment to the bench.

I undertook to write up a scholarly, well-researched and objective contribution on the appointment of judges according to the law as it stands.

I have looked not only at the letter, but at the very spirit of the law, and this is the only point on which I take issue with Mr Charles Pace (November 18) who otherwise expressed a very academically balanced opinion.

I made no attempt at answering that other, more elusive question "what makes good judges". Nor have I, as yet, committed myself one way or another as to the wisdom or otherwise of widening the constitutional qualification for an appointment to the bench which is at present restricted to practising advocates and serving magistrates.

In his article "Implications of commission's stand", Dr Georg Sapiano invited me to illuminate him when we next meet in South Street. In particular, he asks what profession exactly is exercised by doctors of law when they assist their clients out of the courts of justice. I choose to take the cudgel up now, reserving any casual encounter between us in South Street for the exchange of pleasantries and other much lighter conversation.

Firstly, however, in deference to our head of state, I should perhaps kick off by raising a point of order, thereby coming to his defence. Nowhere have I even hinted that the President of Malta has broken the Constitution, and, with all due respect, Dr Sapiano should not take any liberties from my piece to affirm that my reasoning leads to that.

On the contrary, I believe I made it amply clear that in matters concerning the appointment of judges, the President is bound to follow the prime minister's advice. It is true that, in taking his oath of office, the President must affirm that he will faithfully execute the office of President of Malta and that he will, to the best of his ability, preserve, protect and defend the Constitution of Malta.

However, as any first-year law student reading constitutional law at our university should know, the appointment of judges simply does not happen to be among the very limited functions listed in the proviso to Article 85 of the Constitution in the performance and discharge of which the President is required to act in accordance with his own deliberate judgment.

There is absolutely no precedent whatsoever to suggest that the President could ever be justified in disobeying his prime minister whenever he may be required to act on his advice, and to even contemplate such a scenario would be to bring about a constitutional crisis of unparallelled dimensions.

Therefore, in matters concerning the appointment of judges, the President of Malta has no other option but to gracefully bow his head to what is mandatorily required of him under the main body of that Article, by acting in accordance with the advice of the prime minister. As I also wrote, in matters concerning the appointment of judges, the prime minister, that primus inter pares, reigns supreme.

There is, however, another twist to it, because ultimately it was the prime minister who chose, as so entitled to do by the Constitution, to keep his constitutional prerogative somewhat in check by referring the matter of Dr André Camilleri's appointment to the Commission for the Administration of Justice for its advice, well knowing that the Commission is presided over by the President of Malta, where the President is this time free to act in the execution of entirely separate and distinct responsibilities qua member of the Commission, and where he undoubtedly did perform his duty, as uncomfortable to him as that may have been. For that he deserves praise, not rebuke.

Returning now to the challenge posed by Dr Sapiano.

In lay, everyday language, there is a tendency to interchange the terms "advocate" and "lawyer". This is unfortunate, albeit understandable, since a layman cannot be expected to appreciate the difference. It is, however, unforgivable in more knowledgeable, legal strata. There is indeed a fundamental difference, nay I would say a chasm of a difference, between an advocate on the one hand, and a lawyer on the other. And therewith lies the answer for all those who care to see it.

An advocate practises the art and vocation of pleading before the courts, while a lawyer, as expert and well versed though he may be in the law, need never have approached the bar. In this context, Dr José Herrera writing in another recent Talking Point ("The Andrè Camilleri dilemma") completely loses sight of the very specific term advocate, resorting instead to the looser and more generic term lawyer; while Dr Austin Bencini, writing at the same time as Dr Sapiano ("Legal profession: one and indivisible"), seemingly also falls for the same trap, as eventually does Dr David Grech ("Definitive clarification needed") .

We must, however, all tear off the blinkers, be self-disciplined and admit that in truth the times have changed, and are still changing, such that, contrary to Dr Bencini's perceptions, they have in reality brought about a distinct fragmentation in the legal profession.

While I do appreciate Dr Bencini's underlying albeit subtle legitimate concern with regard to the code of ethics, with all due respect, this cannot serve so as to redefine the very meaningful term advocate.

Earl Jowitt, Lord High Chancellor of Great Britain (1945 - 1951), in his work The Dictionary of English Law, defines an advocate (advocatus) as "a patron of a cause assisting his client with advice and pleading for him. He is defined by Ulpian (Dig. 50, tit. 13) to be any person who aids another in the conduct of a suit or action. The term is at the present day confined to persons professionally conducting cases in court, i.e. barristers and solicitors."

I have no wish to insult the intelligence of your readers, by recommending to them that perhaps they ought to consult the Oxford English Dictionary which might be languishing somewhere in a bookcase, but it just happens to be a rule of legal construction and interpretation that words should be ascribed their ordinary meaning.

There is no scope for judicial interpretation when the ratio legis is clear. That would only lead to a distortion of the legislator's intentions - and the Andrè Camilleri saga is in itself a monument to that - leading to the very dangerous situation that the law is conveniently manipulated by those responsible to administer it in order to suit a whim.

While I do note that Dr Sapiano has succeeded in swaying certain opinion his way by challenging my 'ergo' when interpreting section 79 of the Code of Organisation and Civil Procedure, considering this to be his 'eureka' (Roamer was only too quick to dismiss my reasoned article as a convoluted attempt to rush to the defence of the Commission for the Administration of Justice), he has only rushed to print because what he has failed to grasp is that in attempting to turn my argument on its head he has parted company with logic itself, leading to unacceptable and illogical conclusions. What Dr Sapiano is suggesting is that you may practise as an advocate without actually practising as an advocate.

In this context, I cannot but publicly applaud the encouragement which was recently given to all practising advocates by Mr Justice Joseph Galea Debono, in the course of his opening address delivered at his first public sitting, not to shirk away from pleading their clients' causes - what in legal circles is known as trattazzjoni - by resorting to the filing of dry written submissions instead of sharpening their oratorial skills.

What Mr Justice Galea Debono was attempting to revitalise is nothing less than the art of advocacy itself - the pleading of causes before the courts of justice - and an art at which, it must be acknowledged, Mr Justice Galea Debono, during his practising days as an advocate, was a master par excellence.

I most deeply apologise in advance should I happen to offend, but although there may in practice today exist such a thing as what I would casually call "boardroom advocacy", a doctor of law (to use Dr Sapiano's term) who assists his clients out of the courts of justice, but who has otherwise forgotten where he last saw his moth-eaten toga, or who practically needs to seek directions in order to get himself to the edifice of the Courts of Justice, cannot be said to be exercising the profession of advocate in the manner that this was understood by our forefather drafters of the law and as is unequivocally enshrined in the Code of Organisation and Civil Procedure in Title VII of Book First regulating the profession of advocate and titled Of Advocates, and as this entitlement to so practise is granted to him by the President of Malta in his warrant.

Let us also not lose sight of the historical context in which these laws were drafted, namely at a point in time when there could be no doubt whatsoever in the legislator's mind as to the true meaning of the term advocate. Therefore, any such person, as reputable and capable though he otherwise may be, is disqualified from being appointed a judge of the superior courts of Malta under the law as it stands and by which we must be guided.

Servi lex sumus ut liberi essere possimus. We may all well be the poorer for it, but what Dr Sapiano and others of like mind are trying to do, while being unable to quote any authoritative chapter or verse, is to fit the law to the candidate, rather than the candidate to the law. They have done away with the blindfold traditionally worn by Lady Justice, and that is exactly where the fault lies.