The Legal System
Throughout the centuries Malta has passed under various dominations: The Phoenicians, the Cathaginians, the Romans, the Arabs, the Normans, the Swabians and Aragonese, the Castilians and the Knights of St John, followed by the French and the British. Each successive domination has left the imprints, with the consequent changes in the system of legislation.
There are five different sources of legislation: the Roman Law, the Sicilian Law, the Canon Law, the Code de Rohan, and the Code Napoleon.
Roman law is still the main basis of Malta’s legislation, but cast in the French mould and modified by the liberal spirit of English principles.
The first codification of the Laws of Malta was made by Emmanuel de Rohan, the Grandmaster of the Knights and Prince of Malta in 1784, sanctioning the publication of the Diritto Municipale di Malta, containing a synthesis of the state of the laws of the island during the rule of the Knights between 1530 and 1798.
The promulgation in France in 1804 of the Code Civil de Francais, officially known as Code Napoleon, has exerted an incomparable influence upon the institutions and legal cultures of the civilized world.
Sir Adrian Dingli in 1854 embarked on the colossal task of codifying the laws of Malta, following the model of the Code Napoleon.
The Corte Captanale of Mdina is the oldest Court of Justice in Malta, and consisted of the Criminal Court and the Civil Court. Its jurisdiction extended to all country districts outside the fortified towns of Mdina and later Valletta.
Appeal from the decisions of these Courts lay to the Board of Jurats called Universita’ who received the assistance of a lawyer, but whose advice they were not obliged to follow; and to the Supreme Tribunal of appeal, in Valletta, after the building of the new city.
The Criminal Court consisted of the Capitano di Verga, a Judge (who sat on both Courts), and the Advocate Fiscal.
Governor Sir Thomas Maitland abolished the Corte Capitanale, and concentrated in the Gran Castellania, in accordance with the reform of the legal system of Malta undertaken by him as the first act of his administration.
The new system began to function on the 4th June 1814.
The Gran Castellania consisted of the following tribunals:
- the Grand Criminal Court
- the Grand Civil Court
- the Court of Administration of public Property
- the Commercial Court or Consolato di Mare
- the Supreme Tribunal of Appeal
The Court of Special Commission establishing a modified form of the English trial by jury was established by Proclamation No. VI of 15th October 1829.
The Criminal Court was originally composed of:
- the Castellano or president
- a Judge
- an Advocate Fiscal
- General Notary (later the Registrar)
The jurisdiction of the Criminal Court of the Gran Castellano was confined to cases occuring in Valletta and the Three Cities (Birgu, Bormla and Senglea). After the Maitland reform of Hune 4, 1814, its jurisdiction extended to the entire island, as well as Gozo, which up to that date had its own Court of Law, the Corte Governatoriale. Two Judges were appointed to sit in the Criminal Court, and later increased to three in 1825.
Maitland and his reforms of Justice and the Law Courts
Too many appeals were permitted which prolonged cases indefinitely. Judges took their income from judicial fees, a system that encouraged corruption and bribes. Sentences were at times given out of court, even in the judge’s house.
Judges, once appointed, were practically irremovable. The Commission recommended judges to be given fixed salaries by the Government, the Governor to have the power to remove incompetent ones, witnesses were to be interrogated in an open court, instances of appeals were to be reduced, trial by jury was not recommended in a small community like Malta, except in the Commercial Court.
Maitland found the administration of justice in a state of judicial tyranny. He decided to supervise that department himself. In April 1814 the previous Consolato del Mare (set up by the Knights in 1697) was turned into a Commercial Court on the British model. The Corte della Castellania was divided into two halls: one for the Criminal Court and one for the Civil Court.
All judges were appointed by the Governor and confirmed by the King. They were appointed for life, until retirement or until suspended by the Governor.
They had to take an oath of loyalty to the King and could not work privately as lawyers. Sentences passes by a judge in an open court were final. The Court of Appeal consisted of two halls, one for commercial, the other for civil cases.
There was no appeal from the Criminal Court. The Governor and two judges constituted the final Supreme Court of Justice dealing with exceptional cases.
The power of the Governor to reverse judicial decisions, a power practiced by the Grandmasters, was abolished. Italian was made the language of the Courts.
The planning of these reforms was the first major issue tackled by Maitland once the islands became free from plague early in 1814. In May 1814 the new Constitutions of the Courts were proclaimed and put into force. In 1823 Maitland persuaded his British superiors to accept appeals to British Commercial Courts cases initiated at the Malta Commercial Court, so long the dispute involved a sum exceeding £1,000.
One criticism to the justice and court reforms introduced by Maitland was that, except for commercial cases, few changes were made to the Criminal Code of Grandmaster Rohan (1784) except for suppliments issued by the Governor. But the laws concerning corsairing, torture and slavery of Muslims were abolished, and these practices were declared illegal and punishable by imprisonment or by the death penalty.
The Present Justice and Law Courts System
Judges sit on the Superior Courts, which, in Malta, are made up of the Constitutional Court, the Court of Appeal, the Court of Criminal Appeal, the Criminal Court and the Civil Court. The Inferior Courts are the Court of Magistrates (Malta) and the Court of Magistrates (Gozo). The latter court has a both superior and an inferior jurisdiction.
Malta’s Law Courts are located in Republic Street, Valletta, while Gozo’s Court of Magistrates is housed in the court building at the Citadel, Victoria.
The Maltese judicial system is a two-tier system comprising: a court of first instance, presided over by a judge or magistrate, and a court of appeal.
There are also various tribunals that deal with specific areas of the law and have varying degrees of competence. Decisions pronounced by these Tribunals are almost all dealt with by the Court of Appeal.
The Director General (Courts) is responsible for the administration of the courts. He or she is also responsible for the management and administration of the Courts of Justice Division, including the registries, archives and other services, and also heads the Courts of Justice Division.
The Chief Justice and judges, two of whom are currently serving in international courts, are appointed by the President of Malta on the advice of the prime minister after consultation with the leader of the opposition. Their mandatory retirement age is 65.
The highest court, the Constitutional Court, hears appeals in cases involving violations of human rights, interpretation of the constitution, and invalidity of laws. It also has jurisdiction in cases concerning disputed parliamentary elections and electoral corrupt practices. There is a civil court, a family court, and a criminal court. In the latter, the presiding judge sits with a jury of nine. The court of appeal hears appeals from decisions of the civil court and of various boards and tribunals, including the Industrial, Small Claims, and Consumers’ Tribunal. The court of criminal appeal hears appeals from judgments of conviction by the criminal court. There are also inferior courts presided over by a magistrate.