Legal uncertainty and disproportionality

The whole issue concerning the granting or withholding of a presidential warrant to practise the profession of advocate to two law graduates who have undergone criminal proceedings, irrespective of whether they have been found guilty or otherwise, revolve

The law prohibits persons who do not satisfy this qualification from being appointed advocates by the President of Malta. ‘Good conduct’, more in practice than in law, is interpreted by reference to the Police conduct certificate. Prima facie, a conviction by a court of criminal jurisdiction would fall foul of the ‘good conduct’ requirement. However, one would have to establish inter alia the nature of the offence committed (that is, whether it is a crime or a contravention), its occurrence (whether it was committed once or multiple times), its gravity (whether it was committed in its simplest or aggravated form), its seriousness (whether it is a major or a minor crime), whether it has been attempted or completed, whether it is limited only to a conspiracy or the taking of preparatory measures, whether it is voluntary or involuntary, whether the accused admitted to the charge, cooperated with the police, breached bail conditions, and the severity of the punishment inflicted.

Moreover, this provision has to be interpreted in the light of human rights law, that is, the principles of proportionately and legal certainty. It would be one thing if the guilty offence was the crime of wilful homicide and another thing if it was a very minor contravention such as parking on a double yellow line.

Although a police conduct certificate is issued in terms of law – the Conduct Certificates Ordinance, Chapter 77 of the Laws of Malta – it must be pointed out that when prospective law graduates apply for their advocate warrant exam, they do not produce their full criminal record sheet, the socalled fedina penale, but an extract thereof – the police conduct certificate. This might possibly be the case with the other professions.

It must be borne in mind that in terms of the Conduct Certificates Ordinance, with the passage of time, certain criminal offences are removed from the police conduct certificate. This does not, therefore, necessarily provide a complete picture to the judges carrying out the warrant exam. The situation would be totally different had a fedina penale been produced.

Hence, as the law is applied today (not as it is written down), there may be cases where a person had committed a criminal offence in the past, he was absolved thereof through its non-inclusion in the police conduct certificate. The judges would not be privy thereto, and subsequently recommend the granting of a warrant to exercise the profession of advocate and, lo and behold!, and that advocate – some time in the future – ends up Chief Justice of Malta.

This is because there is no duty imposed by law on the applicant to require disclosure of bad conduct and bad morals on his/her part. Now let me make it clear: I am not saying that this has been the case in the past I am not aware of any such cases) but that, potentially, it could happen in the future not because it is willed by the provision of the law under examination – for that is not the case – but because the way how the law is applied in practice might provide such an unorthodox result. This apart from the fact that a person might have committed a serious crime abroad and nobody would be privy thereto.

‘Good morals’ has a wider meaning. A person may be debarred from joining the legal profession because s/he is, for instance, a habitual drunkard, drug addict or gambler. A person who is found guilty of a criminal offence even if technically not convicted therefor would fall foul of the good morals qualification.

That said, the provision as currently worded, and irrespective of the principles of legal certainty and proportionality, and irrespective of how the provision is misapplied in practice through recourse to the police conduct certificate to establish good conduct, nonetheless excludes all forms of bad conduct and bad morals. This might be going too far once the terms ‘good conduct’ and ‘good morals’ are broad-ranging and undefined and can practically cover any form of misbehaviour, howsoever trivial and venial it might be or which might have been committed several years ago when the person in question had not matured enough to assume the responsibilities of adulthood. Yet all are condemned under the catch-all phraseology of the law.

As the law obtains, it is within the discretion of the two judges conducting the exam to determine whether a candidate of is ‘of good conduct and good morals’ though, of course, they cannot give an interpretation of the phrase which is contrary to the intention of the legislator. The wording, notwithstanding its breath, is quite clear.

Therefore, I do recognize that there is need for clarity in the law. If I were the policy maker, I would not release a warrant unless and until these two terms are legislatively defined with precision. I would prefer to err on the side of caution and withhold grating a warrant as there are serious implications through its grant. A consequence thereof is that a warrant holder may apply for judicial office or carry out other quasi-judicial, legal or administrative functions established by law on the basis of an advocate’s warrant such as presiding a quasi-judicial tribunal determining civil rights and obligations, performing the functions of a Commissioner for Oaths, presiding warranting boards, being appointed Adjudicator of the Small Claims Tribunal, Commissioner for Justice, and a member of the Commission for the Administration of Justice and its Committees.

Of course, one would want to ensure that these people are of the highest integrity whilst ensuring that the law is both clear and applied proportionately.

Moreover, the provision which was enacted originally in 1854 needs to be brought in line with human rights law – principally the principles mentioned above of legal certainty and proportionality. I think that it is high time for this provision to be revised accordingly.

When prospective law graduates apply for their advocate warrant exam, they do not produce their full criminal record sheet, the so-called fedina penale, but an extract thereof.