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Although appointed by the President, acting in accordance with the advice of the Prime Minister, judges and magistrates are independent of the Executive. A person must have practiced as an advocate in Malta for a period of not less than seven years to qualify for appointment as a magistrate, and twelve years to qualify for appointment as a judge. Judges and magistrates enjoy security of tenure and they can only be removed by the President in the event of proved inability to perform the functions of their office (whether arising from infirmity of body or mind or from any other cause) or proved misbehaviour upon an address by the House of Representatives supported by the votes of not less than two-thirds of all members thereof.
In the words of one jurist, the separation of powers which exists in Malta is not a strict and sharp one, of the American or French pattern, but is more of the nature of checks and balances, such as we find in Britain from where the system was originally obtained. Consequently the Courts are independent from the executive in the discharge of their duties. Like English judges they do not hold office at the pleasure of the Executive; and their salaries, a recurrent charge on the Consolidated Fund, do not require annual sanction.
The influence of Roman Law and of the Napoleonic Codes is easily identified in present day Maltese Law, particularly civil law. English Law has, since the early part of the last century, had its fair share of influence in criminal procedure, certain areas of criminal law, public law and in particular the law relating to merchant shipping. Maltese criminal law always adopted the maxim of English practice: guilt, not innocence, has to be proved.
The judges have been for the most part Maltese and have included some eminent jurists. Occasionally, Chief Justices of the calibre of Sir Arturo Mercieca (who was later exiled) stood up to arbitrary and illegal British measures or enactments in the worst days of colonialism. Another bold judgement was that in the 1940s by Mr Justice A J Montanaro Gauci, himself an Anglophile, on the illegality of deportation orders. Others were not always as courageous but on the whole the bench retained a fair measure of dignity and respect. While delays have tended to characterise judgements, the Maltese public looks up to the Courts as a source of redress, and rather likes using them, especially in libel cases.
In 1964 a Constitutional Court was established as the final Maltese appellate Court. Apart from a period of three years in the early 1970s, when this Court remained unconstituted, it has redressed grievances including a number of cases relating to human rights.
In 1987 Malta adopted the European Convention on Human Rights as part of its laws and Maltese citizens have the right to appeal to the European Court of Human Rights which is made up of judges from each of the member states of the Council of Europe (including Malta).
The Maltese Courts:
The Constitutional Court
The jurisdiction of the Constitutional Court is appellate in cases involving violations of human rights, interpretation of the Constitution and invalidity of laws. It has original jurisdiction to decide questions as to membership of the House of Representatives and any reference made to it relating to voting for election of members of the House of Representatives.
The Court of Appeal
This Court, composed of three judges, hears appeals from the First Hall of the Civil Court; the same Court composed of one judge hears appeals from the Court of Magistrates in its civil jurisdiction. An appeal also lies to the Court of Appeal from decisions of a number of special tribunals.
The Criminal Court
In this Court the judge sits with a jury of nine persons to try, on indictment, offences exceeding the competence of the Court of Magistrates as a Court of Criminal Judicature. This court may in certain cases sit without a jury.
The Court of Criminal Appeal
This Court, consisting of three judges, hears appeals from persons convicted before the Criminal Court. A person convicted on indictment may appeal against his conviction in all cases or against the sentence passed on his conviction unless the sentence is one fixed by law. An appeal can never result in a sentence of greater severity. An accused person may also appeal against a verdict of not guilty on the ground of insanity. In certain cases the Court may also order a re-trial. The Attorney General, who is the prosecutor before all the Superior Courts, cannot appeal from a verdict of acquittal or against the sentence passed. The Court also hears appeals by the accused and by the Attorney General from decisions on preliminary pleas and from decisions on pleas regarding the admissibility of evidence.
This Court, when formed by one judge, hears appeals from judgments delivered by the Court of Magistrates as a Court of Criminal Judicature. In this case the person convicted can also appeal in all cases, whether against conviction or against the sentence passed. The Attorney General's right of appeal from these judgments is limited in most cases to appeals on points of law, though increasingly, particular laws are conferring a general right of appeal to the Attorney General in connection with some offenses.
The Civil Court: First and Second Halls
The First Hall takes cognizance of all causes of a civil and a commercial nature exceeding the jurisdiction of the Court of Magistrates. Of particular importance is its taking cognizance of all applications for redress in respect of violations of the constitutionality protected human rights and fundamental freedoms protected by the European Convention of Human Rights and Fundamental Freedoms which was made part of the Laws of Malta by Act XIV of 1987.
The Second Hall is a Court of voluntary jurisdiction in matters of a civil nature, such as the tutorship of minors, adoption, the interdiction and incapacitations of persons of unsound mind, the opening of successions, and the confirmation of testamentary executors.
The Courts of Magistrates
These Courts, which are always composed of a single Magistrate, exercise both civil and criminal jurisdiction.
The Court of Magistrates for Malta, in the civil field, has only an inferior jurisdiction of first instance, in general limited to claims not exceeding one thousand Maltese Liri. In the criminal field, the Court has a twofold jurisdiction, namely as a Court of Criminal Judicature for the trial of offenses falling within its jurisdiction, and as a Court of Inquiry in respect of offenses falling within the jurisdiction of the Criminal Court. In the first case, the Court is competent to try all offenses punishable with up to six months imprisonment. In the second case, it conducts the preliminary inquiry in respect of indictable offenses and transmits the relative record to the Attorney General. If there is no objection from the accused, the Attorney General may send back for decision by the Court of Magistrates cases punishable with up to ten years imprisonment. Money claims of one hundred Maltese Liri or less are decided by the newly established Small Claims Tribunal.
The Gozo Courts
The Court of Magistrates for Gozo in the civil field, has a two-fold jurisdiction, an inferior jurisdiction comparable to that exercised by its counterpart Court in Malta, and a superior jurisdiction, both civil and commercial, in respect of causes which in Malta are cognizable by the First Hall of the Civil Court.
Within the limits of its territorial jurisdiction, this Court has also the powers of a Court of voluntary jurisdiction.
Small Claims Tribunal
The Small Claims Tribunal has been set up recently by an Act of Parliament. The Act provides for the appointment of an adjudicator who decides these cases on principles of equity and the law. Proceedings are summary and there is little formality of proceedings. The intention is to have claims of one hundred or less Maltese Liri decided in one to two sittings. The adjudicator may be a lawyer with at least one year practice or a Legal Procurator with three years practice. Sittings of this Tribunal are held in Malta or Gozo.
Commissioners of Justice
A small number of infringements of the law such as minor traffic offenses (parking in a non-parking area, etc.), illegal disposal of litter, non-compliance with the Education Act etc., have been depenalised and are heard by Commissioners of Justice. The Commissioners are selected from among persons holding a law degree and given a three year appointment. As the offenses have been depenalised the case may be decided even in the absence of the accused.
The Juvenile Court
The Juvenile Court Ordinance (Cap. 71) was repealed by Act XXIV of 1980. The Juvenile Court is now provided for by Act XXIV of 1980 as subsequently amended by Act XI of 1985. It consists of a Magistrate sitting in a place different from that of the ordinary Courts of criminal jurisdiction and hearing charges against, or other proceedings relating to persons under the age of sixteen years. In the proceedings before it, the Court is assisted by two persons, one of whom is a woman, whom the Court may consult in any case for its decision, such consultation to take place in open Court. The Court is not, however, bound to abide by the opinion of the assistants. Sittings are at present being held at the "Centru Hidma Socjali" in Santa Venera.
Independence of the Judiciary
The Judiciary (Judges and Magistrates) and the Attorney General enjoy security of tenure and are independent from the other organs of the State.
The Constitution provides for this independence through its various provisions.
THE JUDICIARY
The Bench of Judges is made up of:
His Honour the Chief Justice Vincent De Gaetano
The Hon. Mr. Justice Joseph David Camilleri
The Hon. Mr. Justice Carmel A. Agius*
The Hon. Mr. Justice Joseph A. Filletti
The Hon. Mr. Justice Anton Depasquale
The Hon. Mr. Justice Alberto Magri
The Hon. Mr. Justice Geoffrey Valenzia
The Hon. Mr. Justice Giannino Caruana Demajo
The Hon. Mr. Justice Gino Camilleri
The Hon. Mr. Justice Carmelo Farrugia Sacco
The Hon. Mr. Justice Raymond Pace
The Hon. Mr. Justice David Scicluna
The Hon. Mr. Justice Joseph R. Micallef
The Hon. Mr. Justice Joseph Galea Debono
The Hon. Mr. Justice Tonio Mallia
The Hon. Mr. Justice Philip Sciberras
The Hon. Mr. Justice Noel Cuschieri
The Hon. Mr. Justice Joseph Azzopardi
* Currently serving on the International Criminal Tribunal for the former Yugoslavia
The Magistrature is made up of:
Mag. Dr. Dennis Montebello
Mag. Dr. Michael Mallia
Mag. Dr. Antonio S. Mizzi
Mag. Dr. Joseph Apap Bologna
Mag. Dr. Silvio Meli
Mag. Dr. Carol Peralta
Mag. Dr. Jacqueline Padovani Grima
Mag. Dr. Paul Coppini
Mag. Dr. Saviour Demicoli
Mag. Dr. Tonio Micallef Trigona
Mag. Dr. Abigail Lofaro
Mag. Dr. Giovanni Grixti
Mag. Dr. Consuelo Scerri Herrera
Mag. Dr. Miriam Hayman
Mag. Dr. Joseph Cassar
Mag. Dr. Lawrence Quintano
Mag. Dr. Anthony Vella
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