The debate following the two recent nominations to the Bench has confirmed that major changes are needed in the way appointments to the judiciary are made. While one of the two nominees chose to decline the appointment after the Commission for Administration of Justice expressed its position, it has been confirmed that Caroline Farrugia-Frendo will soon take her oath of office in accordance with the provisions of the Constitution.

It has to be noted that the Constitution in article 100 lays down one single requirement for a lawyer to become a magistrate – he must have “practised as an advocate in Malta for a period of, or periods amounting in the aggregate to, not less than seven years”.

One may argue that as long as seven years would have passed from the day the lawyer had subscribed to the oath required to practise as a lawyer, then he would be eligible to join the Bench.

Clearly, an explanation as to what constitutes “practise as an advocate” should be identified. This would reduce a lot of arbitrary definitions taken by some to clarify the position.

Much consideration should be given to the training that new law graduates should have before they are given the warrant to practise as lawyers

In this regard, Judge Giovanni Bonello, replying to questions put forward to him by Malta Today, rightly stated: “There may be some margin of interpretation as to what practising as a lawyer implies. The main traditional function of a lawyer is court litigation and if that is not prominent in the curriculum, I do not believe the requirement of the Constitution is respected.”

In line with the above, it appears that Farrugia-Frendo was working with an established law firm and consequently handled both civil and criminal cases. She was recently appointed as a court attorney in the superior courts.

Thus, it would be most unfair if one is critical in her regard at such a premature stage when she has not had time to prove herself in her new appointment. Undoubtedly, her appointment is being made in accordance with the law and further comments in her regard at this stage would be futile.

The government should, however, take on board the several recommendations with regard to appointments to the Bench made by the Bonello Commission. Although much has been said about the seven-year statutory requirement, emphasis should be put on other matters, in particular the experience the graduate would have achieved after being called to the bar; if such person was present in court; whether such person dealt with a spectrum of cases; whether such person handled a case load on his own and whether he has achieved or participated in the academic field, through publications or post-graduate training.

It must be noted that the Bonello Commission fell short of proposing some much-needed changes to the law regulating the admission of new lawyers as well as the legal profession in general. While the general perception is that most lawyers exercise their profession in court, in reality only a small percentage of these law graduates actually work in litigation.

This is understandable considering that our financial services sector is attracting many young lawyers. Clear rules that reflect current trends in the legal sector should be in place for all practitioners.

It is opportune to point out that much consideration should be given to the training that new law graduates should have before they are given the warrant to practise as lawyers. As a matter of fact, under the current system, upon obtaining a warrant to practise, a lawyer may appear before any court (whether before a tribunal or before the Constitutional Court) and may sign any judicial act (irrespective of the serious repercussions which may ensue), contrary to what happens in other European jurisdictions.

As the law stands, there is no provision for continued professional education – a basic requirement in most European systems. The fact that the mandatory one-year internship (prattika) required in Malta for new lawyers is being abused in some cases, is an open secret and thus such situation should be addressed immediately.

In the absence of a proper framework that reflects the challenges faced by law practitioners in this day and age as well in the light of constant new developments in the legal field, criticism levelled at particular individual nominees to the bench may clearly be unwarranted.

John Bonello is a practising lawyer.