Judicial Appointments

Dr Kevin Aquilina (The Sunday Times, December 8) argues that the difference in wording employed in the Constitutions of Malta prevailing prior to 1961 "practised at the bar in Malta", and in the 1961 Constitution "practised as an advocate in Malta", widens the scope for appointments to the Bench to encompass advocates who have never exercised the profession in court.

Since the ordinary meaning of the term "advocate" is, by very definition, restricted to persons who professionally conduct cases in court (and therefore practise at the bar), I can see no logical justification whatsoever in even attempting to look for a difference in meaning when there is none whatsoever to be found. Like the drowning man, we really do seem to be clutching at straws now, and talking of "desk lawyers" (to use Dr Aquilina's own term) practising as advocates is simply a contradiction in terms!

Just as it would be inconceivable to contemplate a surgeon who avoids the operating theatre like the plague as practising as a surgeon, so also and in like measure would it be inconceivable to contemplate an advocate who gives a wide berth to the bar as practising as an advocate.

Finally, Dr Aquilina asserts that the warrant of advocate is indispensably required ad validitatem to exercise the profession of advocate at the bar, but is not an essential prerequisite to exercise the profession outside the courts in Malta. I would tend to agree with him, but only because an advocate cannot logically be perceived to exercise his profession outside the courts in Malta.

One of Malta's most senior and highly respected advocates, who has encouraged me to strongly emphasise the distinction between an "advocate" and a "lawyer", also opined with me that a "lawyer" need not hold the warrant of advocate, because in exercising his profession outside the courts in Malta such person cannot be considered to be exercising the very distinct profession of "advocate".

Appealing though that may be to my thesis, the difficulty lies in the relevant provisions of the Code of Police Laws (very competently highlighted by Dr David Grech, writing in The Times) providing for the offence of touting, which seemingly restrict the drafting and preparation of judicial or extra-judicial documents, as well as the giving of legal advice, to qualified advocates, legal procurators or notaries public.

However, as I have already written, it has never been suggested that the drafting of judicial and extra-judicial documents, as well as the giving of legal advice, although evidently not the exclusive domain of advocates (because legal procurators and notaries public are similarly authorised so to do), does not form part of an advocate's sphere of competence and responsibility when taken as a complete whole - just as much as a surgeon also attends at his clinic and holds consultations with his patients.

Articles 42 and 43 of the Code of Police Laws therefore add nothing to the ordinary meaning of the term "advocate", and make no derogation whatsoever from the fact that the very crux of the exercise of the profession of advocate is to be conducted by pleading at the bar.

It should be noted that it is the very warrant contemplated in Article 79 of the Code of Organisation and Civil Procedure which makes one an advocate in the first place. Until such time as that warrant is conferred, no holder of the academic degree of Doctor of Laws (LL.D.) as bestowed upon him or her by the University of Malta may claim to be an advocate.

And since it is the warrant which makes one an advocate, then one would be rather well advised to take a closer and more critical look at the wording inscribed in such warrant to see exactly what profession it entitles the holder to exercise.