The saga of the trial of the former Chief Justice has once more instigated the debate on the manner by which our judges are appointed. In our country, as in various other countries, the members of the judiciary are appointed directly by the Executive. Elsewhere, the judiciary is a career of choice at University level.

The Constitution is practically mum on what criteria the government should follow in such appointments except for article 96 which states:

"(1) The judges of the Superior Courts shall be appointed by the President acting in accordance with the advice of the Prime Minister.

(2) A person shall not be qualified to be appointed a judge of the Superior Courts unless for a period of, or periods amounting in the aggregate to, not less than 12 years he has either practised as an advocate in Malta or served as a magistrate in Malta, or has partly so practised and partly so served."

Unfortunately, to my mind this article of law has been interpreted too restrictively. For example, some time back a certain advocate, Andrè Camilleri, was to be called to the Bench. At the time, it was the practice of the government to submit the name of any potential candidate to the Commission for the Administration of Justice. The particular nominee was a renowned lawyer in commercial law. There was no doubt as to his vast experience in such matters as company law and financial services but, like many in his field, he did not practise at the Bar. The commission was of the opinion that his nomination should be rejected because he did not fulfil the requisite of 12 years experience as demanded by the law.

Lately, in Parliament, during the Budget debate, I had occasion to recommend that the relative article of the Constitution be amended and I, therefore, enticed the Minister of Justice to meet on the issue in order to draft the necessary proposals.

Nowadays, the legal profession has grown a great deal and practising lawyers can no longer be interpreted as being so in the traditional sense of the word. In truth, the vast majority of young lawyers today no longer practise before the courts. This, however, does not mean that they refrain from doing legal work; in fact, quite the contrary is the case.

To its credit, Malta has managed to project itself as a hub for financial and maritime services. This relative new legal niche is undoubtedly attracting scores of practising lawyers. They are obviously gaining a wealth of expertise in this important branch of our law. Furthermore, other lawyers are specialising in particular sectors such as company law and European law and, here again, they often refrain from engaging in court litigation. The trend is definitely to have more specialised courts.

I myself have called for the re-introduction of the Commercial Court and for the introduction of a Vice Admiralty Court in order to promote more maritime litigation in Malta. All this will naturally necessitate the need for more specialisation and such lawyers definitely fit the equation. As things stand today we are excluding a priori over 70 per cent of the legal profession.

Our courts definitely should be composed of the best legal minds possible and in certain areas of law the above-mentioned legal practitioners are perhaps the most qualified.

It must be emphasised that the most important function of the Minister of Justice is to recommend to the Cabinet candidates for the Bench. At the end of the day, notwithstanding any improvements made to the law, efficiency and excellence would rest solely with the quality of our judges. I have, therefore, had occasion to emphasise the minister's political accountability in respect to the nominations he would make. I stressed the point that, while I fully concur with the system prevailing here, I strongly argue that such appointments should never be taken lightly and should always be based on merit and not on other motives. It cannot be under-emphasised that, once an appointment to the judiciary is made, then this would be practically irreversible. Therefore, wrong decisions are perpetuated indeterminately to the detriment of one and all.

The government must assess right and fitting persons not only from a purely academic perspective but must take into account other important considerations. Foremost among such considerations would be to examine whether the practising lawyer would be fully committed to the legal profession or whether he would have other ulterior economic interests.

In the aftermath of the trial mentioned earlier, the government should aim at further strengthening the judiciary and, undoubtedly, one way of doing so is by revisiting article 96 of the Constitution.

Dr Herrera is a Labour member of Parliament.