The government has announced its decision to appoint two advocates as magistrates. Yet, a controversy erupted as to the requisite qualifications for appointment.
One advocate is the chair of the Employment Commission and the other may not satisfy the quantitative criterion for appointment.
Let me explain the constitutional provisions regulating such appointments.
Section 100 (2) of the Constitution states that: “A person shall not be qualified to be appointed to or to act in the office of magistrate of the inferior courts unless he has practised as an advocate in Malta for a period of, or periods amounting in the aggregate to, not less than seven years.”
This provision allows for only one quantitative criterion for appointment to the magistracy based on the duration of practice as advocate. There are no qualitative criteria envisaged such as knowledge of the law, integrity and honesty.
The seven years of professional practice are limited to the practice of the profession of advocate. Notaries public and legal procurators are thereby excluded.
The seven years of professional practice need not be consecutive but may be broken up, such as when an advocate takes a career break.
The practice has to be in Malta. Practice as a barrister in the United Kingdom is not eligible, nor is service on an international court or tribunal.
Practice need not be at the bar. A person might have practised as an advocate in Malta but never pleaded a case in court. Yet s/he is still eligible for judicial appointment.
One advocate is chair of the Employment Commission and the other may not satisfy the quantitative criterion for appointment
From when is the seven years counted? Is it from graduation day?
The answer is in the negative because it is not the law degree which makes one an advocate.
Is it from the date of presentation by the minister responsible for justice of the warrant to exercise the profession of advocate or when one subscribes to the oath of office in the Court of Appeal?
The Constitution does not answer these queries but the matter is addressed by the Code of Organisation of Civil Procedure.
The COCP provides, in section 79, that: “No person shall exercise the profession of advocate without the authority of the President of Malta granted by warrant under the Public Seal of Malta.”
Therefore, for a person to exercise the profession of advocate, s/he must be in possession of a presidential warrant to exercise that profession. The warrant is granted following successful completion of the bar exam. However, section 80 of the COCP debars an advocate from exercising the profession unless s/he has subscribed to the oaths of allegiance and of office. Both oaths are mandated by law. If not subscribed to, an advocate cannot exercise the profession. Practice starts following the taking of both oaths.
Section 120(4) of the Constitution says: “A member of the Employment Commission shall not, within a period of three years commencing with the day on which he last held office or acted as member, be eligible for appointment to or to act in any public office.”
In terms of section 124 (1) of the Constitution, “public office means an office of emolument in the public service”.
Section 124(2) specifies that “public service includes service ... in the office of magistrate of the inferior courts”.
Kevin Aquilina is dean of the Faculty of Laws at the University of Malta