Search for a law firm
April, 6 2020
April, 3 2020
Malta’s Legal System
The legal system of Malta is a mixture of the numerous legal cultures and beliefs that applied on the island during many years of foreign rule.
Even though British rule got official in 1814, the British held back from imposing common law in Malta. A Maltese version of the Code of Napoleon in 1852 replaced the Code de Rohan which had been broadcasted in the last days of the long rule of the Knights of Malta. Other codes were also ratified in the same period, most remarkably the Code of Organization and Civil Procedure, the Criminal Code and the Code of Criminal Procedure.
During the British Colonial Rule, British legal influence became unavoidable therefore the financial and company legislation derives from the British model. In 1964 Malta got independence and even though the British domination left, the UK legislation is often reflected in legislation passed by the House of Representatives. The Maltese Constitution, mirrors closely British constitutional principles and fundamental rights influenced by the European Convention on Human Rights and the Indian Constitution.
Consequently, in 1987 the European Convention on Human Rights was integrated in domestic legislation. Malta also entered the European Union in 2004 and since then, the acquis communitaire and any future EU regulations overcome the domestic legislation.
The Court system functions through the Superior and Inferior Courts. 19 judges are located on the Superior Courts, in the first instance and in the appellate court. In the first instance, there is a constitutional chamber to which are referred applications for a remedy under the Constitution or the European Convention on Human Rights as well as references from other tribunals where issues of a possible breach of fundamental human rights arise.
As in many other countries there are different Courts for different cases. The Civil Court perceives civil law cases; the Family Court which handles family cases, the Criminal Court supervises over trials by jury.
The higher instance is the appellate courts which are the Constitutional Court, the Court of Appeal and the Criminal Court of Appeal.
The Inferior Courts are chaired by magistrates who have several competences: as inquiring magistrates in criminal investigations, in the gathering of evidence in criminal trials, as a court of criminal judicature where criminal sanction does not exceed six months jail or with the consent of the accused, ten years .
Mandatory arbitration also applies in certain instances and an arbitration centre has been set up.
Laws of Malta
The laws of Malta is basically based on below axes.
1. Constitutional law
2. The primary and secondary legislation
3. The common law, European Community Law
4. Custom law local traditions for example the Code de Rohan.
The Constitution of Malta consists of principles for preserving the essential human rights and a separation of the executive, judicial and legislative powers. The President is the head of State, while the executive powers lays on the Prime Minister and the Cabinet. The House of Representatives is elected every 5 years and consist of 65 representatives.
The Constitution of Malta is deliberated as the Superlative Law of the island. The sovereignty of the Constitution indicates that no law can be inconsistent with the Constitution.
The primary legislation are the acts of the government which is embodied in chapters of laws. There are to date 476 Chapters that regulates the civil, commercial, criminal and procedural matters. The secondary legislation refers to rules and regulations that are taken by other local authorities and Ministries that has been delegated powers from the Parliament. Acts of Parliament are written both in Maltese and English, however if it will occur a difference between the two texts, the Maltese text shall overcome unless it is otherwise stated in the Act.
The European Convention on Human Rights and the European community law as from the 1st of May 2004 with Malta’s EU accession are binding on Malta and the power of review is entrusted in the Courts. No law in Malta may be inconsistent with the rights and freedoms set out in the Convention. Another basis of Maltese law is The English Common law which is well recognized through case law.
An additional source of regulations is Custom Law which states to rules that has existed for many years to a degree that it has obtained the force of law. Custom rules are generally unwritten, describes the principle or rule of the custom, it has continued uninterrupted for years. A Custom which has these characteristics may be 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.
Malta has a two level judicial system, which are the Superior and Inferior Courts. The Superior Courts are directed and chaired by Judges and the Inferior Courts by Magistrates.
The Judges and the Magistrates are appointed by the President who is performing in agreement with the Prime Minister according to the constitution. To become a Judge you must have twelve years legal practice to become a Magistrate you need seven years legal practice.
The judges and the magistrates can be removed from their position only if there is prove that they are unable to fulfill their responsibilities and implement the tasks of their office or if there is prove of misbehavior. It is required two thirds majority by the House of Representatives in order to remove a judge or a magistrate from their position.
There are 5 Superior Courts of Malta which are: The Constitutional Court, The Court of Appeal, The Court of Criminal Appeal, The Civil Court, The Criminal Court. The Constitutional Court is the only court that is directly established by the Constitution.
Both the Constitutional Court and the Courts of Appeal, Criminal and Civil in their Superior Jurisdiction are chaired by the Chief Justice and two other judges, whilst all the other Superior Courts, including the Courts of Appeal in their Inferior Jurisdiction are chaired by 1 judge.
The Attorney General functions as a public prosecutor and as a legal consultant for the Government in all legal areas. The Attorney General holds his positions until he is 60 andhas the same independence as that held 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 functions also as guardian of the laws of Malta and consequently a guardian of the public interest.
The Commission for the Administration of Justice on the other hand controls the work of all courts in Malta and is directed by the President of Malta. Beyond the president it is composed of nine members including the Chief Justice (Deputy Chairman) and the Attorney General and the President of the Chamber of Advocates. The Commission is also responsible to make recommendations to the Minister of Justice for the better efficiency of the Courts and has the authority to exercise discipline according to law over advocates and legal procurators.