CHAPTER VIII

The Judiciary

Superior Courts.

Substituted by:

LVIII. 1974.46.

95. (1) 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.

(2) 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 -

(a) such questions as are referred to in article 63 of the

Constitution;

(b) 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;

(c) appeals from decisions of the Civil Court, First Hall,

under article 46 of this Constitution;

(d) 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;

(e) appeals from decisions of any court of original

jurisdiction in Malta on questions as to the validity of

52 CONSTITUTION OF MALTA

laws other than those which may fall under article 46

of this Constitution; and

(f) 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.

(3) 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.

(4) 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.

(5) 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.

(6) 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.

Appointment of

judges.

Amended by:

LVIII. 1974.47.

96. (1) The judges of the Superior Courts shall be appointed

by the President acting in accordance with the advice of the Prime

Minister.

(2) 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.

Tenure of office of

judges.

Amended by:

LVIII. 1974.48.

97. (1) 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.

(2) 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.

(3) 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.

Acting Chief

Justice and acting

judges.

Amended by:

LVIII. 1974.49.

98. (1) 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.

(2) 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.

(3) 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.

Inferior Courts. 99. 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.

Magistrates.

Amended by:

LVIII. 1974.50.

100. (1) Magistrates of the inferior courts shall be appointed

by the President acting in accordance with the advice of the Prime

Minister.

(2) 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.

(3) 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 years.

(4) The provisions of sub-articles (2) and (3) of article 97 of

this Constitution shall apply to magistrates of the inferior courts.

Oaths to be taken

by judges and

magistrates.

101. 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.

Commission for

the Administration

of Justice.

Added by:

IX.1994.2.

101A. (1) 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:

(a) the Chief Justice who shall be Deputy Chairman and

shall preside over the Commission in the absence of

the Chairman;

(b) the Attorney General, ex officio;

(c) two members elected for a period of four years by the

judges of the Superior Court from among themselves;

(d) two members elected for a period of four years by the

magistrates of the Inferior Courts from among

themselves;

(e) 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;

(f) the President of the Chamber of Advocates, ex officio.

(2) 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.

(3) 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.

(4) (a) 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:

(i) if he is a Minister, a Parliamentary Secretary, a

Member of the House of Representatives or a

member of a local government authority; or

(ii) if he has been convicted of any crime punishable

by imprisonment for any term; or

(iii) if he is disqualified to be elected as a member of

sthe 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.

(b) 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.

(5) (a) 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.

(b) 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.

(c) 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.

(6) (a) 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.

(b) 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.

(c) 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.

(7) 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.

(8) Sub-articles (2) and (3) of article 121 of this Constitution

shall apply to any committee of the Commission.

(9) 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.

(10) 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.

(11) The functions of the Commission for the Administration of

Justice shall be:

(a) 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;

(b) to advise the Minister responsible for justice on any

matter relating to the organisation of the

administration of justice;

(c) when so requested by the Prime Minister, to advise on

any appointment to be made in terms of articles 96, 98

or 100 of this Constitution;

(d) to draw up a code or codes of ethics regulating the

conduct of members of the judiciary;

(e) 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;

(f) 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, and to draw the attention of any judge or

magistrate to any conduct which could affect the trust

conferred by their appointment or to any failure on his

part to abide by an code or codes of ethics relating to

him;

(g) to exercise, in accordance with any law, discipline

over advocates and legal procurators practising their

profession; and

(h) such other function as may be assigned to it by law.

(12) 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.

(13) 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.

(14) 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.

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See also:

• Malta Law Centre

• Malta European Centre