For all the black and white I like to wear, I’ve never had the simple luxury of a world without nuance or ambivalence. I suppose if I had to give my thinking a colour, it would be a cerebral grey. And grey thinking never sleeps. It keeps you awake at night. It gets you into arguments, even with yourself.

I did a lot of that when the war of the warrants was in full swing. And of course, mindful as always of all possible variables and contexts, I argued the toss for both sides. The one thing I was absolutely certain of was that the discussion should have taken place in a purely academic and neutral arena. People should not have been mauled, humiliated and damaged in the process.

I refer not only to Yanica Barbara and Thomas Sant but to the four judges repeatedly named and unnecessarily shamed. Ultimately it will be the judiciary and the legal profession carrying the can from here on, not those immediate protagonists. I wonder whether those who ventilated and sensationalised the story fully understood the implications.

So let’s cut to the chase: s.81 of the Code of Organisation and Civil Procedure.

Prima facie, the obtaining of a warrant under Maltese law depends on the candidate satisfying six requirements, all of which are of equal importance. Full knowledge of the Maltese language and regular attendance at the office of a practising lawyer for a minimum one year period have the same clout as personal morality and ethical conduct.

But the latter are never precisely defined, not even contrario senso (what doesn’t constitute good conduct), so how, I wonder, does one establish whether a candidate has ticked these boxes or has indeed even practised for the prescribed period?

More helpful, perhaps, is the section a little further down (s.84) which bars any person convicted of a crime liable to imprisonment for a term exceeding one year from practising as an advocate. The logical conclusion here is that not all crimes automatically disqualify, and that two things do: a serious crime and an actual conviction. (Serious crime, by the way, does not include involuntary homicide or crimes against the person excusable under our Criminal Code).

It would appear therefore that contraventions and crimes attracting less than a year’s imprisonment cannot legally affect a lawyer’s certificate of good conduct. So driving under the influence of drugs or alcohol or without insurance, refusing to provide breath, blood or urine samples, would not technically constitute improper conduct – i.e. you wouldn’t be debarred from the bar in those instances. Not even killing someone involuntarily, or shooting a person by accident or in self-defence.

It would seem too that crimes committed beyond the jurisdiction of Malta are similarly beyond the scope of the section in question. In other words, if it doesn’t appear on your conduct certificate, you’re home and dry. What happens overseas, stays overseas.

Isolated incidents – call them ‘life’s joyrides’ – shouldn’t necessarily define you for ever

On the other hand, finding a credit or debit card locally, and using it to run up a €200 tab could get you into some very hot water. You could be charged with theft, misappropriation, fraud, falsification, etc. – all crimes liable to more than a year in prison. But then if you were conditionally discharged and lucky enough to get off without a legal conviction, you’d be off the hook again, at least for the purposes under discussion. And you could still practise as an advocate.

I stand to be corrected, just as the four judges were. But that is my reading of the law, asinine and flawed as it may be.

Now I understand perfectly why the legal profession depends on honesty and a code of ethics. So it does make sense that there are restrictions governing those who apply to join it and those who practise it. I also appreciate that some crimes are more disturbing in certain professions than in others – theft and falsification strike at the heart of public trust, just as sexual predation is a betrayal of the teaching profession.

But I also believe in triumph over adversity. I understand that backgrounds differ, that traumatic events, learning difficulties and other circumstances can cause us to act in ways we later regret. Isolated incidents – call them ‘life’s joyrides’ – shouldn’t necessarily define you for ever.

I’d therefore make allowance for ‘the passage of time’ just as I’d champion a ‘case by case’ approach in the sincere belief that a person convicted of an offence can still pursue the career of his dreams 10 or 15 years after the fact, provided he has learned his lesson.

Which is why I believe the matter should be properly regulated from day one, and not at the 11th hour when the candidate has been strung along and has all but completed his degree.

Two things probably need to happen: (1) tweaking the law, and (2) setting up a vetting and full disclosure process from the outset. Applicants should be made to fill out the equivalent of one of those tedious US visa questionnaires. Anyone therefore applying to university with a view to a legal career must disclose convictions, both home and abroad, detailing fully the nature of the offence(s), when committed, and the punishment(s) awarded. Disciplinary findings should also be disclosed.

Thereafter all applicants will be followed closely, and failure to disclose would indeed seriously compromise a later warrant application. By the same token, full disclosure would operate in the applicant’s favour.

Each case would eventually need be decided on its individual merits. And a specialist board or commission, with the competence to hear appeals, would be established expressly for that purpose.

Having said that, I would advocate a total ban on appointing anyone with a criminal record to the judiciary. After all, everyone is at liberty to take or leave his lawyer, but we don’t choose our judges and magistrates. The Constitution gives them security of tenure so they need to be squeaky clean and above all reproach.

Food for thought. Grey thinking gradually becoming white?

michelaspiteri@gmail.com