Judicial appointments

Let me be very clear about one thing with Dr Kevin Aquilina. It is not the Constitution which regulates the profession of advocate, but the Code of Organisation and Civil Procedure (COCP) in virtue of whose provisions the warrant to exercise that restrictedly privileged profession before the courts in Malta is granted under public seal. And let me be clear with him about another fact. That truth has been the position under Maltese law well before Malta ever had its first Constitution.

The Constitution only regulates the appointment of judges, and in light of the above truth it was perfectly understandable for it not to expand on the condition concerning practice as an advocate which qualifies any appointment of an advocate to the judiciary. That is why, in my original "Talking Point" (The Times, November 13) I wrote that the source for a clear understanding of what the key words employed by the Constitution ("practised as an advocate") entail is to be found in that part of the COCP governing advocates, which already regulated the practice of the profession.

Given that the wording employed in Article 96 (2) of the Constitution "practised as an advocate" constitutes clear and unambiguous language enjoying an ordinary meaning, thereby removing any scope for judicial interpretation, that was a perfectly logical and justifiable argument to advance unless one were purposely seeking to create a constitutional lacuna where there is none in furtherance of whatever hidden agenda or false aspirations one might be harbouring.

Indeed, Article 124 of the Constitution, dealing with interpretation, attempts no artificial redefinition of the word "advocate", last defined in the most recent edition of the Oxford Dictionary of Law (2002) as "one who exercises a right of audience and argues a case for a client in legal proceedings". By way of further illustration, even the Code of Canon Law recognises the office and role of "advocate" in the pleading of causes before the ecclesiastical tribunals (vide Canon 1481 et seq.).

We should all be very familiar with the maxim of legal interpretation and construction, ubi lex voluit, dixit. Now in the very manifest absence of any different definition of the term "advocate" very meaningfully adopted by the Constitution, what sound legal basis could there possibly be for Dr Aquilina to even hint, let alone to convincingly attempt to argue, that the drafters of the Constitution intended to depart not only from the ordinary dictionary meaning of the word but more importantly from the very specific provisions of law which give flesh to the very profession under our own legal system and regulate its exercise?

Had the Constitution simply allowed judicial appointments to be open to advocates sic et simplicitur (as is exactly the case with regard to the appointment of judicial assistants under Section 97A (2) of the COCP which very contrastingly provides that "Judicial Assistants shall be appointed from amongst persons who hold the warrant of advocate"), then clearly the recent dilemma justifiably encountered by the Commission for the Administration of Justice would never have arisen.

This is because it is accepted across the board that once an advocate, always an advocate. Once the warrant of advocate is bestowed upon any qualified person, the entitlement to exercise the profession of advocate before the courts in Malta is never lost or forfeited unless for reasons valid at law, such as for grave professional misconduct.

However the Constitution inserts a most important qualification which just cannot be rode over roughshod. For very differently from the case concerning the appointment of judicial assistants, purposely illustrated above so as to bring the wording of the Constitution qualifying judicial appointments into sharp relief, it is not simply in persons who hold the warrant of advocate for the prescribed number of years that the Constitution is interested for purposes of the higher office of judicial appointments, but rather in those who have actually practised as advocates (as distinct from advocates who may have practised, or perhaps better functioned, as corporate executives, company secretaries, managers, university lecturers, arbitrators, in-house legal advisers and such like anyhow and anywhere but as advocates in the courts).

There is an evident and unmistakable difference here, plain for all to see. To further bring this out, the Constitution even contemplates possible interruptions in the required practice as an advocate by referring to periods of practice as an advocate amounting in the aggregate to not less than 12 years.

In conclusion, because this will certainly be my definitive contribution on a subject which has been argued out ad nauseam, and virtually to the point of public ridicule, the warrant of advocate not only serves to make one an advocate in the first place, but also and above all else very pointedly authorises the grantee to proceed to exercise the profession of advocate in the courts.

No alternative modes of practice of the profession of advocate are given in the warrant, thereby fully respecting the COCP provisions while at the same time paying complete homage to the ordinary meaning of the term "advocate" as this is universally understood. It is this very unique entitlement to exercise the profession of advocate before the courts of Malta as inscribed in such warrant which distinguishes the profession of advocate from that of any other profession in Malta.

There can therefore be no other conceivable way to practise the distinct profession of advocate in Malta, in accordance with the terms of the necessary warrant, other than to plead at the Bar as so entitled by the warrant, and the Constitution does not seek to detract in any way from this harmonious reality by creating a dichotomy in the profession.

The mere entitlement to practise the profession of advocate alone can never be tantamount to actually practising the profession of advocate.

As a member of the profession, it genuinely saddens me to see those who ought to know better lending their names to argue otherwise. Although in a democratic society that is their sacrosanct right and privilege, I consider the unedifying position which they have taken to amount to nothing less than a wholesale betrayal of a time-honoured and proud profession.