The Republic of Malta has a two tier judicial system, having Superior and Inferior Courts. The Superior Courts are presided over by Judges and the Inferior Courts are presided over by Magistrates.
In terms of the Constitution, Judges and Magistrates are appointed by the President acting in accordance with the advice of the Prime Minister. The eligibility criteria for either of these offices is twelve years legal practice to become a Judge and seven years legal practice to become a Magistrate.
The judiciary are independent and are subject only to the Constitution and the law. The independence of the members of the judiciary stems from the Constitution, whereby therein it is stated that Judges shall vacate office when he/she attain the age of sixty-five years and Magistrates shall vacate office at the age of sixty. Furthermore, removal from office requires proved inability to perform the functions of his office (whether arising from infirmity of body or mind or any other cause), or proved misbehaviour, and the approval of two thirds majority by the House of Representatives.
The Superior Courts of Malta are:
The only Court directly established by the Constitution is the Constitutional Court. The Courts competent to hear and decides cases dealing with civil and commercial law issues are established by the Code of Organisation and Civil Procedure (Chapter 12 of the Laws of Malta), whilst the Courts entrusted with trying of criminal law cases are set-up under the Criminal Code (Chapter 9 of the Laws of Malta).
The Constitutional Court and the Courts of Appeal (both Criminal and Civil) in their Superior Jurisdiction are presided by the Chief Justice and two other judges, whilst all the other Superior Courts, including the Courts of Appeal (both Criminal and Civil) in their Inferior Jurisdiction are presided over by 1 judge.
The Inferior Courts of Malta are known as the Court of Magistrates (Malta) and the Court of Magistrates (Gozo). These Courts are presided over by 1 Magistrate and an appeal from a decision given by this Court is to be lodged before the respective Court of Appeal in its inferior jurisdiction.
Furthermore, the Court of Magistrates (Gozo) in its Superior has two Sections styled respectively ''The Family Section'' and ''The General Jurisdiction Section''. The Family Section takes cognisance of cases falling within the competence of that Court in its Superior Jurisdiction, while the General Jurisdiction Sections shall take cognisance of those other cases falling within the competence of the said Court .
The Constitution directs the Commission for Administration of Justice to draw up a code of ethics regulating the conduct of members of the judiciary. The latest amended version of this Code is dated 18 th May 2004.
For a person to be appointed as Attorney General, in terms of the Constitution, the same criteria as that of a judge apply. The Attorney General holds his office until the age of sixty.
The Attorney General is afforded the same independence as that enjoyed by the members of the judiciary. The Attorney General may not be removed from office except for the reasons indicated in respect of judges.
The Attorney General has a dual function: that of public prosecutor, and that of principal legal counsel for Government in all other legal spheres. Such duties include (i) the principal legal advisor to the Government in all areas of law; (ii) the drafter of legislation to be presented to Parliament for approval; and (iii) in being the principal advocate for the Government bound to act as legal counsel for Government in litigation before the Court in Malta or outside Malta.
In the area of civil law, however, besides acting as legal counsel for Government the Attorney General is also vested with a number of specific functions in his role as the guardian of the public interest. He is by law an ex ufficio member of the Rule Making Board, which may make rules in respect of all matters concerning the conduct of causes, and an ex ufficio member of the Commission for the Administration of Justice which has supervisory functions over the workings of the courts. The said Commission consists of ten members, including representatives from the judiciary.
In the procedural field he represents the Government in all actions which owing to the nature of the claim may not be directed against a specific head of a government department. Moreover, the Attorney General is obliged according to law to take possession of the inheritance of any person who dies without leaving any known heir present in Malta, and this in order to safeguard the interests of any person who may be entitled to the inheritance. In such a case the Attorney General shall be the lawful representative of the inheritance whether as plaintiff or defendant. The Attorney General may also directly take action for the recovery of any fine which is recoverable as a civil debt and may likewise take civil action for the forfeiture of goods liable to forfeiture by civil process. He may also demand the interdiction or incapacitation of any person on the ground of the person’s mental infirmity unless the demand is made by some other person. Where a person has been absent and is presumed dead the Attorney General may, in the appropriate circumstances, also apply to the competent court to obtain the registration of the death of such person.
The Code of Organisation and Civil Procedure (Chapter 12 of the Laws of Malta) creates a distinction between public officers serving at the Courts of Justice. This Code sets forth Court Registrars, Executive Officers of the Court and the Director General (Courts).
All employees of the Court are members of the Public Service. These employees had to undergo a rigorous selection process to join this service; a process that is controlled by the Public Service Commission.
The Director General (Courts), who is appointed by the Prime Minister, is responsible for the administration of all Court Registries, Court archives, Court related services,
and all administrative officers of the Court are answerable to him.
Every Court Registry has a Registrar specifically so appointed by the Minister responsible for Justice. The Registrar takes orders from the Judge or Judges sitting in the Superior Courts or from the Magistrates presiding the Inferior Courts. In all other cases, the Registrar shall take such orders from the Chief Justice. These orders are to be made in relation to judicial proceedings and in relation to any judicial act.
The duties of the Registrar include:
registering the proceedings and orders of the Court;
certifying the authenticity of copies required of acts or documents kept in the Court registry;
responsibility for loss, mutilation or alteration of any act or document filed in the registry;
taxation and assessment of judicial costs.
The Executive Officers are entrusted with the service and the execution of any judicial acts, warrants and other orders given by the Courts, and to perform such other duties as may be assigned to them by the Director General (Courts) and the registrars. These officers are also charged with the maintenance of good order and decorum in the building of the courts and in the carrying out of their duties, they enjoy police powers within the building of the Court.
Court Officials being public employees must also abide by the Code of Ethics for members of the Public Service
For further information on the duties and responsibilities of the court officials please see Subsidiary Legislation 12.21 entitled: “Civil Procedure (Regulation of Registries, Archives and functions of Director General (Courts) and other Court Executive Officers) Regulations”, brought into force on the 30th March, 2004 .
For an individual to practice the profession of an advocate in Malta, such individual must, be in possession of a warrant issued by the President of the Republic and under the Public Seal of Malta. Upon obtaining such a warrant, he/she must, in a public sitting, before the Court of Appeal take an oath of allegiance and an oath of office.
The same Code stipulates the qualifications necessary for obtaining this warrant, i.e.:
Amongst the duties of the Constitutionally created Commission for the Administration of Justice, is that at all times, this Commission must 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 this committee including any matter concerning the misconduct of an advocate or legal procurator in the exercise of their profession. Advocates are to abide by a Code of Ethics and Conduct, specifically drawn up for Advocates by this Commission.
Where the Committee finds that there has been misconduct by an advocate or legal procurator in the exercise of his profession or where the Committee finds that the advocate or legal procurator suffers from an infirmity of mind that may seriously affect the exercise of his profession, it may -
Subsidiary Legislation 12.17, entitled “Mutual Recognition of qualifications of Legal Profession Regulations”, (brought into force on the 1 st May, 2004) deals with the possibilities for non Maltese citizens to practice the profession of an advocate in Malta. An individual wishing to establish him/herself in Malta and practice the profession of an advocate in Malta needs to first register such interest with the President of Malta. Such interest needs to be supported by a certificate (that cannot be more than 3 months old) attesting his/her registration with the competent authority in the home Member State. The President of Malta may require him/her to indicate the professional body of which he/she is a member in his home Member State or the judicial authority before which he/she is entitled to practice pursuant to the laws of his home Member State. He may at any time apply to have his/her degree recognised in accordance with the provisions of the Mutual Recognition of Professional Education and Training Regulations (Legal Notice 271 of 2002), with a view to gain admission to the legal profession in Malta.
For an individual to practice the profession of legal procurator in Malta, such individual must, be in possession of a warrant issued by the President of the Republic and under the Public Seal of Malta. Upon obtaining such a warrant, he/she must, in a public sitting, before the Court of Appeal take an oath of allegiance and an oath of office.
The qualifications necessary for obtaining this warrant are the following:-
The principal duties of the Legal Procurator are to assist the Advocates with whom they are retained, in the proceedings of the cases; to file written pleadings in the Registry of the Courts on behalf of the clients, and to perform generally other services in connection with the preparation of lawsuits by the Advocates.
Legal Procurators are entitled to give advice in the Courts of Magistrates and in special Tribunals and Boards.
Legal Procurators are entitled to the same privileges, and are subject to the same disqualifications, as Advocates. They are also subject to the supervision by the Commission for the Adminstration of Justice.
The Commission for Administration of Justice has enacted in 1998 a Code of Ethics and Conduct for Legal Procurators.
The Commission for the Administration of Justice is set up under the relevant provisions of the Constitution, and is chaired by the President of Malta. It is composed of nine other members including the Chief Justice (Deputy Chairman), the Attorney General, two members elected by the judges of the Superior Courts, two members elected by the magistrates of the Inferior Courts, one member appointed by the Prime Minister and another member nominated by the Leader of the Opposition as well as the President of the Chamber of Advocates.
The functions of the Commission include the supervision of the workings of all Courts, and making recommendations to the Minister responsible for Justice, to ensure the efficient functioning of the Courts. The Commission also advises the Minister on any matter relating to the organisation and administration of justice and formulates codes of ethics regulating the conduct of members of the judiciary, after consultation with the Committee for Advocates and Legal Procurators.
The Commission has the right to exercise discipline according to law over advocates and legal procurators practising their profession.
Notaries are public officers charged to receive acts done by any person during his/her lifetime (inter vivos) and wills, and to attribute public faith thereto. As a result of such obligation and duty, they are also responsible for the custody of these same documents and may issue copies of these documents. Chapter 55 of the Laws of Malta (Notarial Profession and Notarial Archives Act) delineates what other powers and functions a notary has.
Persons who are in possession of a warrant of advocate or legal procurator, or are bank managers, traders, certified brokers or exchange agents may not practice the profession of a notary.
The qualifications necessary for a person to be appointed as a notary are:
Notaries take before the Court of Appeal an oath of allegiance and an oath of office prior to commencing the practice of this profession.
The Notarial profession is governed by a Notarial College, composed of all notaries, governed by a Notarial Council whose members are elected annually from the members of the College. The Council has the responsibility to inquire into the professional conduct of any notary.
The supervision over all Notaries, Notarial archives and the Public Registry is exercised by a special court called the “Court of Revision of Notarial Acts”. This Court is composed of members appointed by the Minister from amongst retired judges and magistrates and from among advocates and notaries public.
The Court, whenever it considers it to be expedient may without giving notice visit and inspect the Archives, the Public Registry or the office of any notary.
Last update: 29-07-2004