Definitive clarification needed

I refer to the 'Talking Point' (November 13) by Dr Kevin F. Dingli on "Appointment of judges". The discussion on qualifications for the appointment of judges should not end there.

Dr Dingli referred to the Constitution, which states that a person only qualifies to be appointed as a judge if he has "practised as an advocate in Malta" for 12 years (or has served as a magistrate). Dr Dingli also clearly showed the emphasis that the Code of Organisation and Civil Procedure (COCP) lays on the exercise of the profession of advocate in the courts of justice, by quoting sections 79-81, referring to the advocate's warrant, the requirements to obtain it, and his oath of allegiance. Indeed, the very word "advocate" tends to emphasise his (or her) role before the courts.

On the other hand, one may make two other observations:

The sections of law quoted refer to requirements to obtain a right of audience in the courts. Having obtained such right of audience, there is nothing in the law, nor in any custom or practice, that suggests that this right is lost, or that an advocate becomes something "less" than a practising advocate, simply by practising in the courts infrequently or not at all.

The COCP is primarily concerned with the organisation of the courts and civil procedure. While being of crucial importance, this code is a small part of the law and of the advocate's training. Being a practising advocate obviously encompasses a great deal more than this. Section 42 of the Code of Police Laws not surprisingly recognises this, by reserving a number of activities exclusively to "duly qualified advocates".

These include the drafting or preparing of various types of deeds, and giving legal advice. Indeed, the code of ethics and conduct for advocates, issued under the aegis of the Commission for the Administration of Justice, and which has the full force of law, recognises that an advocate's practice is not necessarily in litigation.

I am, therefore, not at all convinced that when the Constitution refers to practising as an advocate, this should be interpreted as practising in court. Ideally, the appointee to the bench will have practised in court, including also in the criminal court, but what is ideal is one thing, and what is strictly required is another.

A competent lawyer, just like any other professional, never stops his professional development. It is reasonable to expect that a competent lawyer is capable of brushing up on his procedure if necessary. This apart also from the fact that other qualities have to be sought in an appointee, that are not stated in the constitution, such as management skills and integrity.

One thing is clear: The various authorities having a hand in the appointment of a judge have differing opinions, and as a result have shot themselves in the foot. Our beleagured institution of justice could do without a repetition of this episode.

There should not be any controversy in the appointment of a judge. The qualifications for an appointee to the bench need to be responsibly examined and clarified once and for all.