The recent judicial appointments have raised the issue of what constitutes “practice as an advocate”. The Constitution requires “practice as an advocate in Malta” as the sole criterion for judicial appointment.
The ingredients of this requirement are threefold: first, there must be practice; second, the practice has to be carried out by an advocate; and third, the practice carried out by the advocate has to be in Malta.
The third term, “Malta”, is de-fined by the Constitution in its interpretation section 124(1) as “the Island of Malta, the Island of Gozo and the other islands of the Maltese Archipelago, including the territorial waters thereof”.
When the practice is abroad, it is not counted, even though, with EU membership, freedom of movement allows an advocate to practise in EU territory. There are Maltese advocates and judges attached to international courts and tribunals, whether on a full-time, part-time or ad hoc basis.
‘Practice as an advocate in Malta’ needs updating to take on board present-day realities
Yet the Constitution debars such judicial activity from being counted towards practice as an advocate “in Malta”.
The second criterion is that of an “advocate”. The Constitution does not define the term. It is defined by the Code of Organisation and Civil Procedure. An advocate is called to represent clients in litigation and give advice. Other duties include acting as mediator, arbitrator, conciliator and presiding over quasi-judicial tribunals.
The third ingredient is “practice”. One may be in possession of the warrant of advocate and reside in Malta but not practise as an advocate. In this case, one is ineligible for judicial appointment.
But does practice need to be at the bar? If an advocate gives advice to clients but does not plead their case in court or before a tribunal, does that constitute “practice”
The answer is in the affirmative, because the Constitution no longer requires practice at the bar. This was the case in the 1936, 1947 and 1959 Constitutions, but the 1961 and 1964 ones removed it.
When the Code of Organisation and Civil Procedure was promulgated in 1855, it stated: “No person may exercise the profession of Advocate in the Courts of Justice...” Article 10 of the Code of Organisation and Civil Procedure (Amendment) Act, 2007, amended this provision to exclude practice at the bar. The law now reads: “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.”
Can an advocate employed by the State who is not exercising the profession privately be appointed to the bar? Yes indeed. This is the case of judicial assistants and court attorneys.
A standard condition of their employment is to the effect that such advocates are debarred not from exercising their profession but from exercising it privately as, otherwise they would be prone to a conflict of interest. In their public function, they are not representing their own clients in litigation but assisting the judiciary in drafting court judgments while preparing briefs for the judiciary’s consideration concerning points of law.
“Practice as an advocate in Malta” needs updating to take on board present-day realities
The time is ripe for the government and the Opposition to revisit it during their discussions on judicial appointments.
Kevin Aquilina is dean of the Faculty of Laws at the University of Malta.