Judicial appointments: quid faciendum?

Recently a debate arose in Malta as to the qualifications required for appointment to the office of a judge of the Superior Courts. In my view, the pertinent law which has to be studied to establish with clarity the qualifications required for judicial...

However, the argument whether the Code of Organisation and Civil Procedure applies in such instances or has any bearing on the matter also has to be investigated.

The Constitution

Article 96 (2) of the Constitution regulates the criteria for appointment of judges: "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 twelve 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."

As to the legislative history of this provision, it must be observed that from the commencement of British rule in Malta up to the promulgation of the Malta Constitution of 1921 there was no provision in Maltese law to this effect.

The source of Article 96 (2) is a recommendation made by Chief Justice Sir Arturo Mercieca that was agreed to by the Malta Royal Commission of 1931 subject to one addition as can be seen from this extract of the commission's report:

"In accordance with the advice of the present Chief Justice, Sir Arturo Mercieca, the rule should also be introduced that no person be appointed a judge unless he has at least 12 years' practice at the Bar. We would suggest that any years of service on the magisterial bench should also be reckoned as a qualification."

Article 10 (2) of the 1936 Constitution incorporated this recommendation when it provided that "No person shall be qualified to be appointed a judge of the said Courts unless, during a period of not less than twelve years, or during periods amounting in the aggregate to not less than twelve years, he has either practised at the Bar or served as a Magistrate in Malta, or has partly so practised and partly so served."

Article 52 (2) of the 1939 Constitution contained an identical provision which was lifted verbatim from the 1936 Constitution. The same cannot be said with regard to Article 43 (1) of the 1947 Constitution, which, although similar in substance, was worded differently. It provided that:

"No person shall be qualified to be appointed a judge of the said Courts unless, for a period of, or periods amounting in the aggregate to, not less than twelve years, he has either practised at the Bar in Malta or served as a Magistrate in Malta, or has partly so practised and partly so served."

Essentially, the difference between the wording of the 1936 and 1939 versions on the one hand and the 1947 version on the other are twofold:

(a) in the fomer, the words "in Malta" seems to apply only to serving as a magistrate in Malta and not to practising at the Bar in Malta. As the intention of the legislator seems to have been to give effect to the report of the 1931 Royal Commission, the wording was corrected in the 1947 Constitution to better reflect the intentions of the Royal Commission. Thus, practice at the Bar in the 1947 Constitution is linked to Malta and not, say, to the United Kingdom or, for that matter, any other country; and (b) the wording of all three Constitutions (1936, 1939 and 1947), although not identical, conveys the same message insofar as the period of practice and service are concerned. Indeed, the discrepancy is a matter of syntax, for all three Constitutions are in agreement that a judge should be appointed from among advocates who have either practised at the Bar in Malta or served as a magistrate in Malta, or have partly so practised and partly so served for a period of, or periods amounting in the aggregate to, not less than 12 years.

Article 27 (2) of the Malta (Constitution) Order in Council, 1959 follows the pattern set out in the 1947 Constitution with one cosmetic change. The words "No person shall" were substituted by "A person shall not". The 1959 provision thus reads:

"A person shall not be qualified to be appointed judge of the said Courts unless, for a period of, or periods amounting in the aggregate to, not less than twelve years, he has either practised at the bar in Malta or served as a Magistrate in Malta, or has partly so practised and partly so served."

The 1961 Constitution had a very similar provision but with one important difference which is crucial for the proper construction of the constitutional provision as it currently obtains. The 1961 provision read:

"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 twelve 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."

Note that the latter provision, contrary to that contained in previous versions, uses the words "practised as an advocate in Malta" as opposed to the words "practised at the Bar in Malta". It is therefore obvious that these two phrases are not synonymous: the former is indeed wider in purport than the latter. In addition, the words "at the Bar" have now been purposely removed to give a different meaning to the provision under examination.

Furthermore, the expression "practised as an advocate" in not restricting the practice to exercising the profession of advocate in court but refers also to any other services which an advocate may give in his or her professional career which might not necessarily be litigation oriented.

On the basis of this subtle distinction between the wording in the 1961 Constitution - which was followed in the 1964 Constitution,1 as it currently obtains - and previous versions of the provision under study, if an advocate has never exercised the profession in the courts of justice in Malta he or she can still be appointed a judge of the Superior Courts. This is essentially the crux of the matter.

Whether this is entirely a wise course of action to pursue by the Government of the day is a totally different thing for, in practice, some experience at the Bar would surely be an indispensable asset for the new incumbent. A judge worth his or her salt should not only have mastered substantive law but should be extremely well versed in the law of procedure for this is the law which he or she always has to apply in all cases pending before him/her.

However, the point being made at this juncture by the different wording adopted in the 1961 Constitution (followed in the current Constitution) was specifically intended to bring about a different result from the previous wording in the 1936, 1939, 1947 and 1959 constitutional provisions.

In other words, there has never been, since 1961, a constitutional requirement in force in Malta prohibiting an advocate who does not practise the profession in court from being appointed judge of the Superior Courts. A contrario sensu an advocate who has not practised the profession of advocate in court can still be appointed judge (or magistrate)2 provided that he or she has practised the profession of advocate outside the Courts of Justice and in the Maltese Islands.

Moreover, it is also clear that if an advocate has never practised his or her profession outside the courts of justice in the Maltese Islands as, for instance, would be the case where he/she has totally abandoned the profession in favour of a teaching job totally unrelated to the legal profession, then this advocate cannot be considered to have practised the profession of advocate.

Nonetheless, what amounts to actual practice is not defined at law. One would presumably require an element of consistency in the practice of the profession and not an erratic practice. But this matter has to be judicially determined or legislatively ascertained.

By way of conclusion, the expression "practice at the Bar" means practice at the courts, the bar being the place in court where the advocate speaks on behalf of his or her client when addressing the judge, magistrate or jury. Once the 1961 Constitution and its successor have both opted for a wider meaning by removing the requirement of practising at the bar as Chief Justice Sir Arturo Mercieca had recommended, it has been possible since 1961 to appoint as judges and magistrates advocates who have not practised their profession in court.

The next question which has to be addressed is whether the provisions of the Code of Organisation and Civil Procedure (COCP) have any material bearing on the qualifications for appointment of judges and magistrates in Malta.

Code of Organisation and Civil Procedure

Article 79 of the COCP, Chapter 12 of the Laws of Malta,3 as it currently obtains provides that: "No person may exercise the profession of advocate in the courts of justice in Malta without the authority of the President of Malta granted by warrant under the Public Seal of Malta."

When the COCP came into force on August 1. 1855, it had an article providing that: "No person may exercise the profession of advocate in the Courts of Justice of the Island of Malta and its Dependencies without the authority of the Governor granted by warrant under the Public Seal of Malta."

Subsequently, the words "the Island of Malta and its dependencies" were substituted to read "in Malta". Further, the words "the Governor" were substituted by "Governor-General" when Malta became independent and by "the President" when Malta become a republic.

Apart from these modifications, Article 77 of the COCP as originally enacted has been changed three times in past years:

(a) it was substituted by Article 2 of the Code of Organisation and Civil Procedure (Amendment) Act, 1977. The new provision did not change the sub-article under consideration apart from renumbering it as sub-article (1) thereof. New sub-articles (2) to (4) were introduced intended to restrict the practice of the profession of advocate in any court of Justice in Malta if an advocate happened to be a Member of Parliament.

Nonetheless, these sub-articles were struck down by the Constitutional Court in its judgment of September 1989 in Il-Pulizija vs. Onor. Perit Michael Falzon, B.Arch., A&CE, MP, where it declared these provisions unconstitutional insofar as they ran counter to the accused's right to adequate representation and to an effectual remedy as enshrined in the Constitution of Malta and in the European Convention of Human Rights and Fundamental Freedoms.

(b) it was amended by article 5 of the COCP (Amendment) Act, 1978 where the word emigrazzjoni in the Maltese version of sub-article 3 (c) (iv) was substituted by immigrazzjoni;

(c) it was amended by Article 38 of the COCP (Amendment) Act, 1995 where sub-articles (2), (3) and (4) thereof were deleted while sub-article (1) thereof was now renumbered as article 79. In other words, the provision was changed to reflect the wording of the COCP as originally enacted.

From an examination of Article 79 of the COCP, it appears that the warrant of advocate in indispensably required ad validitatem to exercise that profession at the bar but is not an essential prerequisite to exercise the profession outside the courts in Malta.

Thus, for instance, if an advocate happens to be a desk lawyer giving advice to clients but never taking up litigation in court, if an advocate acts as an arbitrator at the Malta Arbitration Centre insofar as legal disputes are concerned, if an advocate happens to be employed with a company and acts as its secretary but never engages in judicial litigation, or if an advocate drafts laws for the Legislature or subsidiary legislation for the Executive, he or she is still considered to be exercising the profession of an advocate. Nevertheless, if he or she wishes to take up litigation in court, that is, at the Bar, he or she must possess a warrant; otherwise he or she cannot enter an appearance before a judge of the Superior Courts or a magistrate of the Inferior Courts.

Recommendations

Having followed with interest the case of Dr André Camilleri as reported in the media, including the official correspondence published by the Department of Information, and bearing in mind the historical evolution of the provisions of the law applicable to the appointment of judges, I think that the procedure concerning appointments to the Bench as contained in the Constitution needs fine-tuning.

First and foremost, criteria have to be drawn up, written down and published delineating those essential requisites which have to be fulfilled by a candidate for appointment to both the office of judge and magistrate. Such criteria should include efficiency, integrity, honesty, competence, conscientiousness, broad-mindedness, fairness, tolerance, motivation, dedication and in-depth knowledge of the law. These substantive criteria are more relevant than the formal one obtaining today, that is, the length of time the candidate for appointment has practised the profession of advocate.

Second, the Ministry of Justice - as the lead ministry in such cases - is to be fully entrusted with dealing with such appointments prior to referring the matter to Cabinet. It should establish appropriate administrative mechanisms for selection of potential candidates to judicial office. This ministry should carry out a formal and thorough examination of each potential candidate as to conduct, character, affiliations, conflicts of interest, undesirable friendships, etc., with a view to ascertaining whether the candidate meets the criteria I have listed.

Third, once a potential candidate has been identified, the Ministry of Justice should open a personal file on that candidate where all information about him or her should be recorded. The candidate should be required to submit an extensive curriculum vitae, supporting documents (e.g. conduct certificate, birth certificate, copy of warrant, etc.), a declaration as to financial assets and membership of secret and other organisations. His or her personal file compiled as aforesaid should be referred to the Cabinet once the ministry concludes that the candidate in question is potentially suitable for judicial office. If Cabinet endorses the minister's candidate, the Prime Minister should then seek the advice of the Commission for the Administration of Justice.

Fourth, the commission would examine the candidate in person and review his or her nomination for judicial office. The commission may require one of its sub-committees or a purposely established sub-committee to carry out an extended interview of the candidate. It should be given an appropriate period within which to conclude its task, which should not be less than two months and not more than four months. It is thus incumbent on the Ministry of Justice to set the process rolling at least four months before a vacancy in judicial office occurs or before an incumbent retires.

Fifth, after the commission has concluded its deliberations (and, in doing so, it may summon third parties who might provide it with additional information about the candidate), it will then draw up its non-binding advice and refer it to the Prime Minister. If there is no objection by the commission to the appointment, the Prime Minister should advise the President to appoint the candidate judge of the Superior Courts; if the commission objects to the proposal or requires further clarifications to be carried out by the government, the Prime Minister should, in the former case, refer the matter to Cabinet for a final decision and in the latter case refer the matter back to the Ministry of Justice so that the necessary clarifications are sought and, subsequently, the matter is referred back to Cabinet for a final decision.

Sixth, all the above stages of the proceedings should be held in camera so that the members of the Commission for the Administration of Justice would be free to discuss quite frankly their preoccupations, should they have any, concerning the candidate for judicial office with the candidate, and the candidate may express his or her views without fear of his or her private life (income, property ownership, directorship of companies, etc.) being exposed to public scrutiny for, after all, the candidate might not be found suitable for appointment to judicial office and thus it would be unfair to publicise his or her private matters.

Of course, these are only a few suggestions on what procedure could be adopted in making appointments to the judiciary and I am sure that refinements to this model or other proposals can also be thought of. It is augured that this article, apart from clarifying the legal quandary concerning judicial appointments, will initiate public discussion as to the adoption of an adequate procedure aimed at better regulating the appointment of judges and magistrates according to present-day needs.

Kevin Aquilina, MA, LL.M., LL.D., Ph.D. (Lond.), is senior lecturer at the Department of Public Law, Faculty of Law, University of Malta.

References

1. Although the Constitution has been amended various times, Article 96 (2) was never amended and its text thus remains as originally enacted in 1964.

2. The same provision regulating judges applies also to magistrates - vide Article 100 (2) of the Constitution.

3. When enacted, the COCP was Chapter 15 of the Laws of Malta. In the 1982 Edition of the Laws of Malta, the Law Commission renumbered this Code as Chapter 12.