Malta 1964 Constitution (reviewed 2016) - Page 8 of 16

Table of Contents

CHAPTER VIII. The Judiciary

95. Superior Courts

There shall be in and for Malta such Superior Courts having such powers and jurisdiction as may be provided by any law for the time being in force in Malta.
One of the Superior Courts, composed of such three judges as could, in accordance with any law for the time being in force in Malta, compose the Court of Appeal, shall be known as the Constitutional Court and shall have jurisdiction to hear and determine –
1. such questions as are referred to in article 63 of the Constitution;
2. any reference made to it in accordance with article 56 of this Constitution and any matter referred to it in accordance with any law relating to the election of members of the House of Representatives;
3. appeals from decisions of the Civil Court, First Hall, under article 46 of this Constitution;
4. appeals from decisions of any court of original jurisdiction in Malta as to the interpretation of this Constitution other than those which may fall under article 46 of this Constitution;
5. appeals from decisions of any court of original jurisdiction in Malta on questions as to the validity of laws other than those which may fall under article 46 of this Constitution; and
6. any question decided by a court of original jurisdiction in Malta together with any of the questions referred to in the foregoing paragraphs of this sub-article on which an appeal has been made to the Constitutional Court:Provided that nothing in this paragraph shall preclude an appeal being brought separately before the Court of Appeal in accordance with any law for the time being in force in Malta.
Notwithstanding the provisions of sub-article (2) of this article, if any such question as is referred to in paragraph (d) or (e) of that sub-article arises for the first time in proceedings in a court of appellate jurisdiction, that court shall refer the question to the court which gave the original decision, unless in its opinion the raising of the question is merely frivolous or vexatious, and that court shall give its decision on any such question and, subject to any appeal in accordance with the provisions of sub-article (2) of this article, the court in which the question arose shall dispose of the question in accordance with that decision.
The provisions of sub-articles (6) and (7) of article 46 of this Constitution shall apply to the Constitutional Court and for that purpose references to that article in the said sub-articles shall be construed as references to this article.
If at any time during an election of members of the House of Representatives and the period of thirty days following any such election, the Constitutional Court is not constituted as provided in this article, the said Court shall, thereupon and until otherwise constituted according to law, be constituted by virtue of this subarticle and shall be composed of the three more senior of the judges then in office, including, if any is in office, the Chief Justice or other judge performing the functions of Chief Justice; and if at any other time the said Court is not constituted as provided in this article for a period exceeding fifteen days, such Court shall, upon the expiration of the said period of fifteen days and until otherwise constituted according to law, be constituted by virtue of this subarticle and shall be composed of the three more senior judges as aforesaid.
The judges of the Superior Courts shall be a Chief Justice and such number of other judges as may be prescribed by any law for the time being in force in Malta:Provided that the office of a judge of the Superior Courts shall not, without his consent, be abolished during his continuance in office.

96. Appointment of judges

The judges of the Superior Courts shall be appointed by the President acting in accordance with the advice of the Prime Minister.
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.
Without prejudice to the provisions of sub-article (4), before the Prime Minister gives his advice in accordancewith sub-article (1) in respect of the appointment of a judge of the Superior Courts, (other than the Chief Justice) the evaluation by the Judicial Appointments Committee established by article 96A of this Constitution as provided in paragraphs(c), (d) or (e) of sub-article (6) of the said article 96A shall have been made.
Notwithstanding the provisions of sub-article (3), the Prime Minister shall be entitled to elect not to comply with the resultof the evaluation referred to in sub-article (3):Provided that after the Prime Minister shall have availed himself of the power conferred upon him by this sub-article, thePrime Minister or the Minister responsible for justice shall:
1. publish within five days a declaration in the Gazette announcing the decision to use the said power and giving thereasons which led to the said decision; and
2. make a statement in the House of Representatives about the said decision explaining the reasons upon which the decision was based by not later than the second sitting of the House to be held after the advice was given to the President in accordance with sub-article (1):
Provided further that the provisions of the first proviso to this sub-article shall not apply in the case of appointment to the office of Chief Justice.

96A. Judicial Appointments Committee

1. There shall be a Judicial Appointments Committee, hereinafter in this article referred to as “the Committee”, which shall be a subcommittee of the Commission for the Administration of Justice established by article 101A of this Constitution and which shall be composed as follows:
  1. the Chief Justice;
  2. the Attorney General;
  3. the Auditor General;
  4. the Commissioner for Admiistrative Investigations (Ombudsman); and
  5. the President of the Chamber of Advocates:Provided that the President of the Chamber of Advocates shall not, before the expiration of a period of two years starting from the day on which he last occupied a post on the Committee or he was last a Committee member, be eligible to be appointed a member of the judiciary.
2. The Committee shall be chaired by the Chief Justice or, in his absence, by the judge who substitutes him in accordance with paragraph (d) of sub-article (3).

3

1. 1. A person shall not be qualified to be appointed or to continue to hold office as a member of the Committee if he is a Minister, a Parliamentary Secretary, a Member of the House of Representatives, a member of a local government or an official or a candidate of a political party:Provided that where the President of the Chamber of Advocates is not qualified to be appointed or to hold office as aforesaid the Chamber of Advocates shall nominate another advocate to sit on the Committee in his stead.
  2. The office of a member of the Committee shall become vacant if any circumstances arise that, if the person were not a member of the Committee, the person would not qualify for membership thereof.
  3. A member of the Committee may abstain or be challenged in the same circumstances as a judge of the Superior Courts.
  4. Where a member of the Committee abstains or is challenged, in the case of the Chief Justice he shall be substituted by a judge who shall be the next most senior judge in office, in the case of the Attorney General he shall be substituted by the next most senior advocate according to office in the Office of the Attorney General, in the case of the Auditor General he shall be substituted by the next most senior officer according to office in the National Audit Office,

in the case of the Commissioner for Administrative Investigations he shall be substituted by the next most senior officer according to office in the Office of the Ombudsman and in the case of the President of the Chamber of Advocates he shall be replaced by the next most senior advocate according to office in the committee of the Chamber of Advocates.

In the exercise of their functions the members of the Committee shall act on their individual judgement and shall not be subject to the direction or control of any person or authority.
There shall be a Secretary to the Committee who shall be appointed by the Minister responsible for justice.
The functions of the Committee shall be:
1. to receive and examine expressions of interest from persons interested in being appointed to the office of judge of the Superior Courts (other than the office of Chief Justice) or of magistrate of the Inferior Courts, except from persons to whom paragraph (e) applies;
2. to keep a permanent register of expressions of interest mentioned in paragraph (a) and to the acts relative thereto, which register shall be kept secret and shall be accessible only to the members of the Committee, to the Prime Minister and to the Minister responsible for justice;
3. to conduct interviews and evaluations of candidates for the above-mentioned offices in such manner as it deems appropriate and for this purpose to request information from any public authority as it considers to be reasonably required;
4. to give advice to the Prime Minister through the Minister responsible for justice about its evaluation on the eligibility and merit of the candidates for appointment to the above-mentioned offices;
5. when requested by the Prime Minister, to give advice on the eligibility and merit of persons who already occupy the offices of Attorney General, Auditor General, Commissioner for Administrative Investigations (Ombudsman) or of magistrate of the Inferior Courts to be appointed to an office in the judiciary;
6. to give advice on appointment to any other judicial office or office in the courts as the Minister responsible for justice may from time to time request:
Provided that the evaluation referred to in paragraph (d) shall be made by not later than sixty days from when the Committee receives the expression of interest and the advice mentioned in paragraphs (e) and (f) shall be given by not later than thirty days from when it was requested, or within such other time limits as the Minister responsible for justice may, with the agreement of the Committee, by order in the Gazette establish.
The proceedings of the Committee shall be confidential and shall be held in camera and no member or secretary of the Committee may be called to give evidence before any court or other body with regard to any document received by or any matter discussed or communicated to or by the Committee.
The Committee shall regulate its own procedure and shall be obliged to publish, with the concurrence of the Minister responsible for justice, the criteria on which its evaluations are made.

97. Tenure of office of judges

Subject to the provisions of this article, a judge of the Superior Courts shall vacate his office when he attains the age of sixty-five years.
A judge of the Superior Courts shall not be removed from his office except by the President upon an address by the House of Representatives supported by the votes of not less than two-thirds of all the members thereof and praying for such removal on the ground of proved inability to perform the functions of his office (whether arising from infirmity of body or mind or any other cause) or proved misbehaviour.
Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the inability or misbehaviour of a judge of the Superior Courts under the provisions of the last preceding sub-article.

98. Acting Chief Justice and acting judges

If the office of Chief Justice is vacant or if the Chief Justice is for any reason unable to perform the functions of his office, then, until a person has been appointed to and has assumed the functions of that office or until the Chief Justice has resumed those functions, as the case may be, those functions shall (except to such extent, if any, as other provision is made by law) be performed by such one of the other judges of the Superior Courts as may be designated in that behalf by the President, acting in accordance with the advice of the Prime Minister.
If the office of any judge of the Superior Courts (other than the Chief Justice) is vacant or if any such judge is appointed to act as Chief Justice or is for any reason unable to perform the functions of his office, the President, acting in accordance with the advice of the Prime Minister, may appoint a person qualified for appointment as a judge of the Superior Courts to act as a judge of those Courts:Provided that a person may be so appointed notwithstanding that he has attained the age of sixty-five years.
Any person appointed under sub-article (2) of this article to act as a judge of the Superior Courts shall continue so to act for the period of his appointment or, if no such period is specified, until his appointment is revoked by the President acting in accordance with the advice of the Prime Minister.

99. Inferior Courts

There shall be in and for Malta such inferior courts having such powers and jurisdiction as may be provided by any law for the time being in force in Malta.

100. Magistrates

Magistrates of the inferior courts shall be appointed by the President acting in accordance with the advice of the Prime Minister.
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.
Subject to the provisions of sub-article (4) of this article, a magistrate of the inferior courts shall vacate his office when he attains the age of sixty-five years.
The provisions of sub-articles (2) and (3) of article 97 of this Constitution shall apply to magistrates of the inferior courts.
Without prejudice to the provisions of sub-article (6), before the Prime Minister gives his advice in accordance with sub-article (1) in respect of the appointment of a magistrate of the Inferior Courts the evaluation by the Judicial Appointments Committee established by article 96A of this Constitution as provided in paragraphs (c), (d) or (e) of sub-article (6) of the said article 96A shall have been made.
Notwithstanding the provisions of sub-article (5), the Prime Minister shall be entitled to elect not to comply with the result of the evaluation referred to in sub-article (5):Provided that after the Prime Minister shall have availed himself of the power conferred upon him by this sub-article, the Prime Minister or the Minister responsible for justice shall:
1. publish within five days a declaration in the Gazette announcing the decision to use the said power and giving the reasons which led to the said decision; and
2. make a statement in the House of Representatives about the said decision explaining the reasons upon which the decision was based by not later than the second sitting of the House to be held after the advice was given to the President in accordance with sub-article (1).

101. Oaths to be taken by judges and magistrates

A judge of the Superior Courts or a magistrate of the inferior courts shall not enter upon the duties of his office unless he has taken and subscribed the oath of allegiance and such oath for the due execution of his office as may be prescribed by any law for the time being in force in Malta.

101A. Commission for the Administration of Justice

There shall be a Commission for the Administration of Justice which shall consist of the President, who shall be the Chairman, and nine other members as follows:
1. the Chief Justice who shall be Deputy Chairman and shall preside over the Commission in the absence of the Chairman;
2. the Attorney General, ex officio;
3. two members elected for a period of four years by the judges of the Superior Court from among themselves;
4. two members elected for a period of four years by the magistrates of the Inferior Courts from among themselves;
5. two members appointed for a period of four years as to one by the Prime Minister and as to the other by the Leader of the Opposition, being in each case, a person of at least forty-five years of age, and who enjoys the general respect of the public and a reputation of integrity and honesty;
6. the President of the Chamber of Advocates, ex officio.
The President shall only have a casting vote; when the Deputy Chairman presides over a meeting of the Commission he shall retain his original vote together with the casting vote.
The members elected to the Commission for the Administration of Justice shall be elected in accordance with such rules as may be prescribed by the person or authority referred to in sub-article (7) of article 46 of this Constitution.
1. A person shall not be qualified to be appointed or continue to hold office as a member of the Commission for the Administration of Justice:
  1. if he is a Minister, a Parliamentary Secretary, a Member of the House of Representatives or a member of a local government authority; or
  2. if he has been convicted of any crime punishable by imprisonment for any term; or
  3. if he is disqualified to be elected as a member of the House of Representatives for any of the reasons stated in paragraphs (a), (c), (d), (e), (f), (g) or (h) of sub-article (1) of article 54 of this Constitution.
2. The office of a member of the Commission for the Administration of Justice shall become vacant if any circumstances arise that if he were not a member of the Commission he would not qualify for membership thereof, and a member of the Commission may abstain or be challenged in the same circumstances as a judge of the superior courts.
1. Where a person fills a vacancy caused by a member of the Commission for the Administration of Justice ceasing to be such a member for any reason, other than the expiration of the period of office, such person shall hold office for the unexpired period of office of the member he replaces.
2. Where a member of the Commission has been challenged or has abstained, the President acting in accordance with his own deliberate judgement shall appoint as a substitute member to sit on the Commission, a person who in his opinion has as far as may be the same qualities and qualifications as the member substituted.
3. Where the members who, are to be elected under paragraph (c) and (d) of sub-article (1) of this article, or who are to be appointed under paragraph (e) of the same sub-article, are not so elected or appointed within two weeks from a call for the purpose by the President, the President who in making such appointment shall act in accordance with his own deliberate judgement shall himself appoint members in their stead who where possible in his opinion shall have the same qualities and qualifications as such members.
1. The Commission for the Administration of Justice shall at all times have a committee for Advocates and Legal Procurators which shall have such composition, functions, powers and duties as may be assigned to it by law. The Commission shall in the exercise of any of its functions in relation to the professions of Advocates and Legal Procurators act through the said committees in such manner and subject to such review as may by the said law be provided.
2. Notwithstanding the provisions of paragraph (a) of this sub-article, the Commission shall refer to the Committee for Advocates and Legal Procurators (hereinafter in this article referred to as “the Committee”) any matter concerning the misconduct of an advocate or legal procurator in the exercise of their profession, and, saving in the case of an appeal, the Commission shall not act otherwise than on receipt of, and in accordance with, the findings of the Committee in any such matter. So however that, where a report of findings by the Committee has not been submitted to the Commission within two months from the day on which the matter was brought before the Committee, or within such further period or periods as the Commission may allow, which shall in no case, except for very exceptional reasons, exceed a further four months, the Commission shall thereupon itself investigate and determine the matter.
3. Without prejudice to the provisions of the foregoing paragraph the Commission may appoint such other committees to assist it on any matter falling within its functions as it may deem fit.
In the exercise of their functions the members of the Commission and of any of its committees shall act on their individual judgement and shall not be subject to the direction or control of any person or authority.
Sub-articles (2) and (3) of article 121 of this Constitution shall apply to any committee of the Commission.
There shall be a secretary of the Commission for the Administration of Justice who shall also act as secretary of any committee of the Commission. The Secretary of the Commission shall be appointed by the Commission from among public officers assigned to the Courts or from among members of the legal professions. The Secretary shall hold office until such time as his appointment is terminated by the Commission.
A person appointed as a member of the Commission for the Administration of Justice or any of its committees may be removed from office by the President, acting in accordance with the advice of the body or the holder of the office appointing such member, but he may be removed only for inability to discharge the functions of his office (whether arising from infirmity of mind or body or any other cause) or for misbehaviour.
The functions of the Commission for the Administration of Justice shall be:
1. to supervise the workings of all the superior and inferior courts and to make such recommendations to the Minister responsible for justice as to the remedies, which appear to it, conductive to a more efficient functioning of such courts;
2. to advise the Minister responsible for justice on any matter relating to the organisation of the administration of justice;
3. to exercise, subject to article 101B of this Constitution, discipline on judges and magistrates;;
4. to draw up a code or codes of ethics regulating the conduct of members of the judiciary;
5. on the advice of the Committee for Advocates and Legal Procurators to draw up a code or codes of ethics regulating the professional conduct of members of those professions:Provided that where such advice is not given within such time as the Commission may establish, the Commission may draw up such code or codes without the necessity of such advice;
6. to draw the attention of any judge or magistrate on any matter, in any court in which he sits, which may not be conducive to an efficient and proper functioning of such court;
7. to exercise, in accordance with any law, discipline over advocates and legal procurators practising their profession; and
8. such other function as may be assigned to it by law.
The Commission for the Administration of Justice shall each year make a report to the Minister responsible for justice on its activities during the previous calendar year, and shall at any time, when it deems fit or as may be required by the said Minister, make a report on any particular matter to the said Minister.
The powers of the President under any law with regard to the subrogation of judges and magistrates and to the assignment of duties of judges and magistrates shall be exercised on the advice of the Minister responsible for justice, so however that, the Minister shall, in advising the President, act in accordance with any recommendation on the matter by the Chief Justice:Provided that where the Chief Justice fails to make a recommendation to the Minister, and in any case where the Minister deems it so appropriate, the Minister may advise the President on the matter, in any manner which, in the circumstances, he considers appropriate:
Provided further that in any such case he shall immediately publish in the Gazette, a notice of that fact together with the reasons therefor, and he shall make a statement of such fact in the House of Representatives not later than the second sitting immediately after he has so advised the President.
The question whether the Commission for the Administration of Justice has validly performed any function vested in it by or under this Constitution shall not be enquired into in any court.

101B. Discipline of judges and magistrates

1. There shall be a Committee for Judges and Magistrates (hereinafter referred to as “the Committee”) which shall be a subcommittee of the Commission for the Administration of Justice and which shall consist of three members of the judiciary who are not members of the Commission for the Administration of Justice and who shall be elected from amongst judges and magistrates according to regulations issued by the Commission for the Administration of Justice so however that in disciplinary proceedings against a magistrate two of the three members shall be magistrates and in the case of disciplinary proceedings against a judge two of the three members shall be judges.
2. The Chairman of the Committee shall be elected by the members of the Committee from amongst themselves.
3. Any member of the Committee may be challenged and shall abstain in the same circumstances as a judge of the Superior Courts may be challenged or may abstain. Where a member has been challenged or has abstained, the Commission for the Administration of Justice shall appoint a substitute member.
4. The Committee shall exercise discipline on judges and magistrates in the manner prescribed in this article.
5. Disciplinary proceedings against a judge or a magistrate shall be commenced upon a complaint in writing and containing definite charges made to the Committee by the Chief Justice or by the Minister responsible for justice, for breach of the provisions of the Code of Ethics for Members of the Judiciary or of a code or disciplinary rules for members of the judiciary promulgated according to the same procedure according to which the said Code of Ethics is promulgated which are from time to time applicable to the members of the judiciary. The complaint shall also include the grounds upon which each of such charges is based.
6. The Committee shall, upon receipt of a complaint under sub-article (5), notify the said complaint to the judge or magistrate against whom it is made granting him or her a reasonable time to reply.
7. If, following prima facie consideration of the complaint and of the reply, the Committee considers that there are not sufficient grounds to commence disciplinary proceedings, the Committee shall refrain from further consideration of the case.
8. If, following the consideration of the complaint and of the reply as referred to in sub-article (7), the Committee considers that there are sufficient grounds to continue the disciplinary proceedings the Committee shall appoint a date for the hearing.
9. Proceedings before the Committee shall be held in camera unless the judge or magistrate against whom the proceedings are taken requests otherwise. The complainant or his representative and the judge or magistrate against whom the proceedings are taken shall have a right to be present during the whole of the proceedings, to produce witnesses in support or in defence of the charges set in the complaint, and to be assisted by an advocate or a legal procurator. The Commission for the Administration of Justice may also appoint an advocate to act as a special independent prosecutor in the disciplinary proceedings.
10. If the Committee finds that the judge or magistrate has breached the Code of Ethics for Members of the Judiciary it shall:
  1. if it considers that the breach is of a minor nature, either issue a warning or impose a pecuniary penalty recoverable as a civil debt payable to the Secretary of the Commission for the Administration of Justice, not exceeding ten per centum of the annual salary of the judge or magistrate as at the time established according to law;
  2. if it considers that the breach is of a serious nature it may suspend the judge or magistrate from the exercise of his duties for a period of not more than six months on half of his salary and allowances as recoverable at the time;
  3. if it considers that the breach is of such a serious nature that it merits the removal of the judge or magistrate from office, it shall report its findings to the Commission for the Administration of Justice which shall consider whether the evidence constitutes prima facie proof and, if it considers that such degree of proof exists, the Commission shall suspend the judge or the magistrate concerned and shall refer the matter to the Speaker of the House of Representatives and to the Prime Minister. During the period of suspension of a judge or a magistrate in accordance with the provisions of this paragraph, which shall not exceed six months, the judge or magistrate shall be entitled to half the salary and allowances appertaining to his office and after the lapse of the said period of six months he shall again start receiving his salary and all the allowances of his office irrespective of whether the case referred has been concluded or otherwise. In the event that the proceedings before the House of Representatives do not lead to the removal from office of the member of the judiciary then the member of the judiciary shall be paid the salary and allowances which shall have been withheld from him during all the period of his suspension.
11. The Committee may also upon the request of the Chief Justice order that a judge or a magistrate be suspended from the performance of his duties on serious medical grounds for a definite period during which the said judge or magistrate shall continue to receive his full salary and allowances. The procedure laid down in this article in respect of disciplinary proceedings shall apply mutatis mutandis in the case of any proceedings taken under this sub-article.

12

1. There shall be a right of appeal to the Commission for the Administration of Justice from decisions of the Committee by the judge or magistrate against whom the Committee makes a finding.
2. The appeal shall be filed with the Secretary of the Commission for the Administration of Justice by not later than twenty days from when the Committee delivers its decision.
3. The filing of an appeal as aforesaid shall suspend the execution of the decision of the Committee.
4. The Commission for the Administration of Justice may from time to time establish rules of procedure for such appeals.
5. The President of Malta shall not form part of the Commission for the Administration of Justice when the said Commission is hearing an appeal from a decision of the Committee.
Proceedings before the Committee shall be concluded within a period of one year and appeal proceedings before the Commission for the Administration of Justice shall be concluded within a further period of six months.
In the exercise of their function under this article the Commission for the Administration of Justice and the Committee for Judges and Magistrates shall have all the powers as are assigned to the First Hall of the Civil Court by the Code of Organisation and Civil Procedure or by any law from time to time regulating the powers of Courts of civil jurisdiction.
In the exercise of their functions the members of the Committee shall act on their own individual judgment and shall not be subject to the direction or control of any other person or authority.
The provisions of this article shall be without prejudice to the application of sub-articles (2) and (3) of article 97 of this Constitution wherever they may apply.