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Last update: 03-07-2006
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Legal order - Malta

 

TABLE OF CONTENTS

The Constitution The Constitution
Primary Legislation Primary Legislation
Subsidiary / Secondary Legislation Subsidiary / Secondary Legislation
The European Convention on Human Rights The European Convention on Human Rights
European Community Law European Community Law
English Common Law English Common Law
Custom Custom

 

Legal order in Malta , apart from Community Law, is mainly regulated by Acts of Parliament (Primary Legislation), Secondary or Subsidiary Legislation, and in some cases reference is made to English Common Law and Custom. The order of preference is as listed above. In Malta , there is no judge made law: The Court interprets the law as contained in the various enactments. This does not mean however that judicial precedents are not authoritative. In fact judges as a general rule do not depart from a well settled principle established by case law, if not for grave reason. It is also the practice in the Inferior Courts to follow the principle laid down on points of law by a Superior Court.

The Constitution

Malta has a written Constitution. It provides principles for safeguarding the fundamental human rights of citizens and a separation of the executive, judicial and legislative powers. Malta, a liberal parliamentary democracy, holds regular elections based on universal suffrage. The President is the head of State, while executive powers rest with the Prime Minister and the Cabinet. The House of Representatives is composed of 65 representatives and is elected every 5 years.

The Constitution of Malta is considered as the Supreme Law of the land. Supremacy of the Constitution implies that no law can be inconsistent with the Constitution. The competence of inquiring into the constitutionality of an Act of Parliament rests with the Courts of Law. An Act declared by the Court as unconstitutional is, up to the extent of its unconstitutionality, null and void.

Primary Legislation

Primary Legislation is usually embodied in chapters of laws. There are to date 476 Chapters of the Laws of Malta. The main laws, namely the civil, commercial, criminal and procedural laws come in a codified form.

For a Bill to become an Act of Parliament, the Westminister System is adopted, whereby it requires the assent of the House of Representatives and of the President of Malta. The procedure followed in Parliament is as follows: a Bill is tabled before the House, possibly following a process of consultation with interested bodies, normally in the form of a White Paper. The principles of the Bill are debated in the House during the Second Reading. A more detailed analysis of the proposed Bill takes place during Committee Stage, including the introduction of the necessary amendments to the Bill. The Bill and amendments thereto are then passed by the House at its Third Reading.

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Unless otherwise specified in the Bill, an Act of Parliament comes into force on the date of its promulgation, i.e. on the date when the Bill receives the President’s assent and is published. Yet, an Act may specify the day of entry into force, i.e. a commencement date. An Act may either come into force in its entirety on a given date or different articles may come into force on different identified dates.

Acts of Parliament are written in Maltese and English, however should there be a discrepancy between the two texts, and unless it is otherwise stated in the Act, the Maltese text shall prevail.

Subsidiary / Secondary Legislation

Parliament may delegate the power to enact regulations to Ministers or subordinate law making bodies. These would include Government departments and other public authorities. Thus an Act of Parliament may be drawn up to embody the main aspects of what is being regulated, empowering the appropriate Minister to introduce the necessary detail in the form of rules, regulations and orders made under the authority of the parent Act. Authorities, on the other hand, are generally empowered through the parent Act, to make bye-laws usually taking the form of orders or prohibitions.

The European Convention on Human Rights

By virtue of Act XIV of 1987, the European Convention of Human Rights was incorporated into Maltese law. No law in Malta may be inconsistent with the rights and freedoms set out in the Convention. The power of review is vested in the Courts.

European Community Law

Act V of 2003 (The European Union Act), provides, among other matters, for Malta ’s accession to the European Union. From the 1 st of May, 2004 , the Treaty of Accession and all acts adopted by the European Union became binding on Malta , and became part of the domestic legislation. Any domestic law which is incompatible with Malta ’s obligations under the Treaty shall, to the extent of its incompatibility, be without effect.

English Common Law

Another source of Maltese law is English Common law. It is well established through case law that when there is a lacuna in Maltese Public Law, reference is made to English Common law.

Custom

A further source of law is Custom. Custom refers to a rule which has existed for many years to an extent that it has obtained the force of law. A custom generally has the following characteristics:

  • it is an unwritten law i.e. not regulated by legislation;
  • it is certain in that it clearly defines the principle or rule of the custom;
  • it is sure in its application in each particular case in that it may show with certainty the rights the custom gives to; and
  • it has continued uninterrupted for years. A Custom which has these characteristics may recognized and enforced by the Maltese Courts if the matter came before them. An area of law where Custom may be applied is Commercial Law.

Further information

« Legal order - General information | Malta - General information »

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Last update: 03-07-2006

 
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