Judiciary of Malta

The judiciary is defined by the Constitution of Malta as a hierarchical system of courts,[4] with a Constitutional Court, separate Civil and Criminal Courts of original jurisdiction.[5][1] In the criminal court, typically the presiding judge sits with a jury of nine. The Court of Appeal and the Court of Criminal Appeal hear appeals from decisions of the civil and criminal cases delivered by the superior and inferior courts respectively. Inferior courts are presided over by magistrates with original jurisdiction in criminal and civil actions.

The highest court, the Constitutional Court, has both original and appellate jurisdiction. In its appellate jurisdiction it adjudicates cases involving violations of human rights and interpretation of the Constitution. It can also perform judicial review. In its original jurisdiction it has jurisdiction over disputed parliamentary elections and electoral corruption practices. the Constitutional Court's judgments do not have explicit erga omnes effect, and norms which have been found unconstitutional need to be repealed by Parliament. The Court is thus faced with repetitive cases due to its jurisprudence not being taken into account by the administration or even by other judges. The Venice Commission notes that “the Constitution should be amended to provide that judgments of the Constitutional Court finding a legal provision unconstitutional will result directly in the annulment of that provision without intervention by Parliament” (#78)[3]

The organisation of the judiciary in Malta foresees a wide range of specialised tribunals.[6] These often do not enjoy the same level of judicial independence as the ordinary judiciary, which risks being undermined by their expansion, with the danger of parallel jurisdictions.[3]

The appointment of magistrates, judges and the Chief Justice are made by the President of Malta “in accordance with the advice of the Prime Minister.” The European Commission noted in 2003 that “Consideration could however be given to the possibility of further improving the objectivity of the appointment procedure, which, in the current situation, is controlled by political bodies”.[2]

Judges have security of tenure until the mandatory retiring age of 65, or until impeachment. The Constitution also foresees that the adjudicators' salaries are paid from the Consolidated Fund and thus the government may not diminish or amend them to their prejudice.

Since 2016, a Judicial Appointments Committee (a subcommittee of the Commission for the Administration of Justice) composed of 5 non-judicial members checks the formal compliance of candidates with the appointment criteria. Vacancies are not announced or published, and the Prime Minister is free to choose any person among the vetted candidates or the sitting magistrates. This according to the Venice Commission leaves “uncircumscribed statutory discretion” (#36) to the Prime Minister[3] and is thus not in line with European standards and the separation of powers. As noted by the Venice Commission (#44),

“1.Judicial vacancies should be published and candidates from inside and from outside the judiciary should apply to the JAC for a specific vacancy. 2. The JAC should have a composition of at least half of judges elected by their peers from all levels of the judiciary. 3. The JAC should rank the candidates, upon merit on pre-existing, clear and transparent criteria for appointment, taking also into account the goal of achieving a gender balance. 4. The JAC should propose a candidate or candidates directly to the President of Malta for appointment. Its proposals should be binding on the President. 5. There should be no exception from this procedure for the appointment of the Chief Justice.”[3]

The Constitution of Malta provides for a Committee for Judges and Magistrates which shall consist of three members of the judiciary who are not members of the Commission for the Administration of Justice. This sub-committee shall have the power to exercise disciplinary measures on a member of the judiciary who is in breach of the code of ethics for the Members of the Judiciary.

The impeachment procedure for members of the judiciary foresees a removal decision of the President on the request of two-thirds the House of Representatives. Impeachment may be based on the grounds of proved inability to perform judiciary functions in office (whether it is infirmity of body or mind or any other cause) or proved misbehavior by the Commission for the Administration of Justice.

The constitution deals with judicial discipline by establishing a Committee for Judges and Magistrates able to commence proceedings for breach of the provisions of the Code of Ethics (Art. 101B, introduced in 2016). Although only broadly defined, these norms are accompanied by more concrete guidelines. Sanctions (warning, fines, suspensions) are meted out by a 3-member Committee for Judges and Magistrates. Yet, such committee cannot dismiss a judge or magistrate; dismissal is in the hands of the House of Representatives, a political entity, which by two-thirds majority may request the President to remove a judge or magistrate. Impeachment may be based on the grounds of proved inability to perform judiciary functions in office (whether it is infirmity of body or mind or any other cause) or proved misbehavior. The Venice Commission noted that this procedure is inappropriate in terms of accountability and lack of legal remedies, and should be revised. “The removal of a judge or magistrate from office should not be imposed by a political body; There should be an appeal to a court against disciplinary decisions directly imposed by the Commission for the Administration of Justice.” (#53) [3]

Prosecution tasks in Malta are shared between the Malta Police Force, who investigate crimes and presses charges, and the Attorney General (AG), who prosecutes the most serious cases. Magistrates may also start ‘inquests’, originally foreseen to preserve evidence, but today rather fully-fledged investigations. The coordination between these three agencies is not clearly defined, and their relation is problematic in view of the other tasks of the Attorney General, who is appointed by the President in accordance with the advice of the Prime Minister and is also the legal adviser to the Government and the State Attorney in judicial proceedings, besides chairing the Financial Intelligence Analysis Unit (FIAU). Attorney General decisions cannot be reviewed by any body, including decisions not to prosecute, which the opens road to criticism in controversial or sensitive cases. As the Venice Commission notes (#67), “Any powers to start, stop and discontinue criminal proceedings, which are not subject to judicial review, do not comply with modern notions of the rule of law.”[3] A separation of the roles of the Attorney General is needed, as already in the United Kingdom since 1983. As regards the Police, a specialised prosecution department should be organised and merged with the Attorney General's prosecuting department. The Venice Commission recommends (#73) that

“An office of an independent Director of Public Prosecutions or Prosecutor General or Public Prosecutor should be established in Malta. 2. The office of the independent DPP would be responsible for all public prosecutions (institution, suspension or termination of criminal proceedings, including corruption). 3. The powers of the new DPP should be subject to judicial review, notably as concerns non-prosecution, upon request by the victims. 4. The AG would remain the legal advisor of the Government 5. The Police remain responsible for investigative work.”[3]

In 2019 Malta had 22 magistrates and 24 judges, as well as a Chief Justice.[7]

• Joanna Drake, P G Xuereb and Eugene Buttigieg (1997). "18: Malta". In Winterton and Moys (ed.). Information Sources in Law (Second ed.). Bowker-Saur. pp. 307 to 319.

• Official website
• December 2018 Venice Commission Opinion No. 940 / 2018 (CDL-AD(2018)028) on constitutional arrangements and separation of powers and the independence of the judiciary and law enforcement in Malta