Judicial appointments

I fail to grasp Dr Kevin Dingli's distinction (The Sunday Times, December 22) between 'advocate' and 'lawyer' in Maltese law. Within a Maltese legal context both terms are synonymous.

As a rule, although there are exceptions, 'lawyer' is used in enactments which have as their legislative source a British statute while 'advocate' is used in statutes which have as their source a continental law.

However we do find instances where 'lawyer' is used to mean 'advocate' in laws of continental origin. A case in point is the Code of Organisation and Civil Procedure (in the proviso to para 46 of Tariff E dealing with fees payable to advocates/lawyers).

In essence both terms are used interchangeably in the Maltese statute book due to the hybrid nature of our laws even though, in my opinion, 'lawyer' is wider in purport than 'advocate'. Maltese law, whether one likes it or not, uses the two terms co-terminously. Nevertheless, a person who holds a law degree such as a Doctorate of Laws (LL.D.) is for all intents and purposes of Maltese law neither an advocate nor a lawyer. He or she is only a law graduate.

In an earlier contribution I made it clear that an 'advocate' is that person who has been granted the warrant to exercise the profession of advocate in terms of the Code of Organisation and Civil Procedure. Whether he or she practises the profession at the bar or not, he or she may still be appointed judge of the Superior Courts once he or she has a warrant to exercise the profession of advocate.

Although, as I have stated in my previous contribution, I do not favour such an approach, the point still remains that the constitutional provision contained in article 96 (2) does not require practice at the bar for elevation to the bench.

Second, there is no definition of what constitutes "practice as an advocate" in Malta in terms of article 96 (2) of the Constitution. The Constitution does not limit such practice to practice at the bar and, thus, it is not legitimate to limit the said practice. If at all, the constitutional evolution of the provision under examination indicates otherwise as such a restriction was first introduced in the 1936 Constitution and followed in the 1939, 1947 and 1959 Constitutions but was done away with in the 1961 and 1964 Constitutions.

Therefore, when a provision is clear and unambiguous it is illogical to interpret it by reading in it what it does not provide for or what one wishes it to contain.

Even if, for argument's sake, it were to be conceded that the constitutional provision is requiring practice at the bar the problem still arises as how to measure the said practice. Do you oblige advocates to clock in each time they arrive and leave the court building?

Third, it is not correct to use the Code of Organisation and Civil Procedure to limit the wording of the constitutional provision to practise the profession of advocate at the bar in view of:

a) the Constitution itself which in article 124 (12) thereof provides that only an Interpretation Act (and no other ordinary law) enacted by Parliament may lawfully construe the wording of the supreme law, and the Interpretation Act, as it currently obtains, is both silent on the matter and does not apply the provisions of the Code of Organisation and Civil Procedure to the constitutional provision; and

b) article 6 of the Constitution is quite straight-forward when it states that the Constitution is the supreme law of the land and that it prevails over any ordinary law (including the Code of Organisation and Civil Procedure). Indeed, this provision has it that where there is an inconsistency between the supreme law and the ordinary law, the Constitution will always have the upper hand.

Fourth, a restrictive interpretation of the constitutional provision in the light of the Code of Organisation and Civil Procedure is tantamount to an inconsistent interpretation of article 96 (2) of the Constitution. Hence, in the light of the above, a limited construction which restricts professional practice to that at the bar cannot be accepted at law as it defeats the wording found in article 96 (2) of the Constitution.

Finally, legalese apart, I think that the constitutional provision needs clarification and such clarity cannot be obtained through the subjective construction of any peron, be he or she an advocate/lawyer or otherwise. This can only be achieved either through an authoritative judicial pronouncement or through legislative intervention. Personally, I would prefer the latter course of action.