Strasbourg, 12 February 2001
CCJE (2001) 11
Consultative Council of European Judges (CCJE)
Questionnaire on the independence of judges, their appointment and careers, and funding of the courts: reply submitted by Malta
I THE INDEPENDENCE OF JUDGES
Question 1: Is the independence of judges guaranteed by the Constitution or by legislation?
Reply: A Judge is independent when, in the exercise of the functions of his office, he is not subject to the direction or control of any other person or authority, and when he is able to withstand any pressure that may be directed against him.
The independence of Maltese judges, being based on a long standing legal tradition, is mainly guaranteed by the Constitution of Malta, secondarily by ordinary legislation.
The main provisions of the Malta Constitution which are designed to shield judges from outside pressures or interferences, and which are reproduced in Appendix I, are the following:-
a) Section 107 (2) - Security of remuneration
This subsection provides that the remuneration of judges is a charge on the Consolidated Fund. This safeguard eliminates the need to have these expenditures authorised by the votes of the House of Representatives each and every financial year.
b) Section 107 (3) - Security of salary and terms of office
The salary and the terms of office of a judge, other than allowances, cannot be altered to his disadvantage after his appointment.
c) Section 97 (2) - Security of tenure
Maltese judges, who must retire when they reach the age of sixty-five years, enjoy security of tenure mainly through this subsection. The only grounds for removal of a judge that are provided in the Constitution are, proven inability to perform the function of his office (whether arising from infirmity of body or mind or any other cause), or proved misbehaviour. This subsection also provides a special procedure for the removal of a judge, namely that a judge shall not be removed from his office except by the President of the Republic, acting upon an address by the House of Representatives, supported by the votes of not less than two thirds of all members thereof. More deail is contained in the reply to question 3, infra.
d) Section 48 (2) (b) - Temptation shield
A person who holds or has held the office of Chief Justice or other judge of the superior courts, cannot, at any time, be appointed to the office of President of the Republic. The President of the Republic is appointed by a resolution supported by a simple majority of the members forming the House of Representatives. This subsection is meant to strengthen the independence of judges by removing completely the temptation for them to aim to a future “promotion” to the highest office of the state.
e)Section 39 (1) - Fundamental right to an independent
Court of Criminal Jurisdiction
This subsection provides the fundamental right of every person in Malta who is charged with a criminal offence to be tried by an independent and impartial court established by law. Indirectly, Section 39 reinforces the independence of judges.
f) Section 39 (2) - Fundamental right to an
independent Court of Civil Jurisdiction
This subsection provides the fundamental right that any court established for the determination of the existence or the extent of civil rights or obligations, shall be independent and impartial. Again, this subsection, indirectly reinforces the judges’ independence.
g) Section 66 (2) - Entrenchment of guarantees
All the above mentioned provisions of the Malta Constitutions are entrenched sections. In fact, section 66 (2) of the Constitution provides, inter alia, that all the above mentioned provisions of the Constitution can only be altered by a bill for an Act of Parliament supported by the votes of not less than two thirds of all the members of the House of Representatives.
As regards the guarantees of judicial independence provided for by other ordinary legislation in Malta, the following provisions may be mentioned:
a) Section 10 of the Code of Organisation and Civil Procedure (Chapter 12 of the Laws of Malta), reproduced in Appendix II provides that all judges must take, before the President of Malta, an oath of allegiance set out in the Constitution of Malta, and also an oath of office contained in the same section. The oath of allegiance obliges a judge to uphold the Constitution, whilst the oath of office obliges him to perform the duties of his office “without favour or partiality”. This oath also forbids a judge to communicate on matters connected to a lawsuit with any person or authority, except in open court. If an illicit communication is made to him, then the judge is obliged to disclose such communication in open court and inform the President of Malta of such communication. This provision provides an additional safeguard against any undue interference by other organs of the State in the administration of justice.
b) Section 16 of the Code of Organisation and Civil Procedure (Chapter 12 of the Laws of Malta) - reproduced in Appendix II - forbids a judge to hold any other office of profit whatsoever under the Government, even though of a temporary nature, except the office of examiner in the public educational establishment or of visitor of Notorial Acts. The obvious aim of this section is to safeguard the independence of judges by removing temptations coming from the other organs of the state.
c) The European Convention Act (Chapter 319 of the Laws of Malta, - reproduced in Appendix III, enacted by Act XIV of 1987. Fundamental human rights. Including the right to independent and impartial courts, as per article 6 (1) of the Convention, are further safeguarded in Malta by this Act which made the European Convention for the Protection of Human Rights and Fundamental Freedoms fully enforcible as part of the domestic law of Malta. The Act also introduced the right of individual petition in accordance with the provisions of Article 25 of the said Convention. Moreover, the Act provides the machinery by which any law which is inconsistent with the provisions of the European Convention can be declared void. The Act also provides for the machinery for the enforcement in Malta of any decision given by the European Court of Human Rights.
Question 2: What Institutional safeguards are there with regard to the independence of judges?
Reply: Besides the institutional safeguards already mentioned, especially those provided by Section 97 of the Constitution, by Section 10 of the Code of Organisation and Civil Procedure and by The European Convention Act, express mention must be made here of Section 101 A of the Constitution. This Section – reproduced in Appendix I - created the Commission for the Administration of Justice, in 1994. One of the functions of the Commission – as per para. (f) of subsection (11) is:-
“To draw the attention of any judge or magistrate on any matter, in any court in which he sits, which may not be conducive to an efficient and proper function of such court, and to draw the attention of any judge or magistrate to any conduct which could effect the trust conferred by their appontment, or to any failure on his part to abide by any code or Code of Ethics relating to him”.
This provision has created the machinery necessary to deal with those types of misconduct of judges which are not serious enough to entail the judge’s removal. Whilst some look on this provision as a further guarantee of the judge’s independence, others hold a contrary view.
Question 3: Is the irremovability of judges recognised?
Reply: Maltese judges enjoy security of tenure in terms of Section 97 of the Constitution which has already been quoted. According to this section, a judge cannot be removed from his office except by the President of the Republic upon an address by the House of Representatives supported by the vote of not less than two thirds of all the members of the House. The only two grounds of removal of a judge from his office is the ground of proved inability to perform the function of his office (whether arising from infirmity of body of mind or any other cause) or proved misbehaviour. Subsection 3 of the same section empowers Parliament to enact a law to regulate the procedure for the presentation of such an address and for such an investigation and proof of the inability or misbehaviour of a judge. The procedure to be followed under Section 97 of the Constitution for the removal of a judge from his office, was established by Act No. XI of 1994, precisely by Section 9 and 10 thereof. These sections, which are self explanatory, are reproduced in Appendix IV annexed to this qestionnaire. This Act, inter alia provides that no publicity is given to the motion until the case is investigated by the Commission for the Administration of Justice. The motion would be placed for the consideration of the House of Representatives only if the Commission reports that a prima facie case has been established. Otherwise, the motion shall not be proceeded with.
Question 4: Can the decisions handed down by judges be reviewed or set aside outside the appeals’ procedure provided for by law, by institutions other than the Courts of Appeal or cassation.
Reply: The answer to this question is definitely in the negative.
Question 5: Can a case be withdrawn from a judge? If so, (1) on what grounds, (2) by which authority?
Reply: Section 734 of the Code of Organisation and Civil Procedure – reproduced in Appendix II - provides an exhaustive list of the grounds when a judge can be challenged or is entitled to abstain from sitting in any case brought before the Court in which he is appointed to sit.
Section 738 of the same Code, establishes who has to decide questions regarding the grounds of challenge or abstention.
Except for the cases mentioned of challenge or abstention, a case cannot be withdrawn from a judge for any other reason or by any other authority.
It is relevant, however, to mention Section 11 of the same Code – see Appendix II - which gives to the President of Malta the power to appoint judges to particular courts and to subrogate another judge in lieu of the judge who has abstained or has been challenged.
Moreover, subsection 13 of Section 101 (a) of the Constitution – see Appendix I - establishes exactly the way in which this power of the President is to be exercised. Normally, the President has to act according to the advice of the Minister of Justice, who, in turn, has to act in accordance with any recommendation of the Chief Justice.
II. THE APPOINTMENT OF JUDGES AND THEIR CAREERS
The Judiciary in Malta is organised on two levels, namely Judges and Magistrates.
In their civil aspect, the inferior Courts are Courts of limited jurisdiction and are presided over by Magistrates. Courts of Magistrates enjoy a wide jurisdiction in criminal matters too.
The Superior Courts are Courts of general jurisdiction and are presided over by Judges. In their civil jurisdiction, the superior courts are the Civil Court, the Court of Appeal and the Constitutional Court. Judges exercise criminal jurisdiction when presiding over the Criminal Court and the Court of Criminal Appeal.
Both Magistrates and Judges have the same safeguards regarding their independence.
Question l What qualifications are required and what conditions must be met in order to become a judge?
Reply: To qualify for appointment as a magistrate, a person must have exercised the profession of advocate in the Courts of Malta for a period of not less than seven years.
To qualify for appointment as a judge, a person must have either practiced as an advocate in the Courts of Malta for a period of not less than twelve years, or served as a Magistrate in Matla or has partly so practised and partly so served for a period of not less than twelve years.
To exercise the profession of advocate a person must be in possession of a warrant granted by the President of Malta under the Public Seal of Malta. Such a warrant is granted only to a person who has the following qualifications:
(a) he is of good conduct and good morals;
(b) he is a citizen of Malta;
(c) he has obtained the academical degree of Doctor of Law (LL.D.) in accordance with the provisions of the Statute of the University of Malta after having studied law in Malta or abroad;
(d) he has, after satisfying the requirements of paragraph (c), or, in the case of persons regularly following the academical course of law in the University of Malta, at any time after the commencement of the last academic year of the said course, for a period of not less than one year regularly attended at the office of a practising advocate of the Bar of Malta and at the sittings of the superior courts;
(e) he possesses a full knowledge of the Maltese language as being the language of the courts;
(f) he has been duly examined and approved by two judges who shall issue, under their signature and seal, a certificate arresting that they have found him to possess the qualifications above mentioned and that he is competent to exercise the profession of advocate in the courts of Malta.
Question 2: Are judges recruited by competitive examination, on the basis of a professional examination or on the basis of their qualifications?
Reply: Judges and Magistrates are not recruited by any competitive examination.
Question 3: What level of studies is required to become a judge?
He must have a degree of Doctor of Laws (LL.D.) from the University of Malta and must have practised law for the period mentioned in the reply to question number 1.
Question 4: Is previous professional experience required?
Reply: See reply to question number 1.
Question 5: Are there any age requirements?
Reply: There are no direct age requirements but there is an indirect age requirement as the appointment is linked to a period of law practice as indicated in the reply to question number 1. Moreover, the Constitution establishes a retirement age, namely sixty-five years in the case of judges and sixty years in the case of Magistrates.
Question 6: Are judges elected?
Reply: No, judges are not elected.
Question 7: Or are they appointed?
Reply: Judges and Magistrates are appointed by the President of Malta, acting in accordance with the advice of the Prime Minister, provided they have the qualifications as mentioned in the reply to question number 1.
These appointments are predominantly based on integrity and competence and not political affiliation. On appointment, Judges and Magistrates are expected to be, and in fact are, totally independent. They owe absolutely no loyalty to the person who had appointed them or his political party.
Question 8: Or are they selected in another way?
Reply: Not applicable.
Question 9: Which authority is responsible for recruiting judges?
Reply: See reply to question number 7.
Question 10: Does any authority independent of the government and the administration take part in the selection or promotion process? If so, specify the composition and role of this body?
Reply: The Commission for the Administration of Justice has also the role of advising the Prime Minister regarding the appointment of Judges and Magistrates. However, such advice is only given if the Prime Minister expressly requests the Commission so to do.
The Commission is chaired by the President of the Republic and has nine other members, namely:-
(a) The Chief Justice who is the Deputy Chairman and who presides over the Commission in the absence of the Chairman;
(b) The Attorney General, ex officio;
(c) two members elected for a period of four years by the Judges of the Superior Court from among themselves;
(d) two members elected for a period of four years by the Magistrates of the Inferior Courts from among themselves;
(e) two members appointed for a period of four years as to one by the Prime Minister and as to the other by the Leader of the Opposition, being in each case, a person of at lease forty five years of age, and who enjoys the general respect of the public and a reputation of integrity and honesty;
(f) the President of the Chamber of Advocates, ex officio.
The President has only a casting vote, and when the Deputy Chairman presides over a meeting of the Commission he retains his original vote together with the casting vote.
The functions of the Commission for the Administration of Justice are:-
(a) to supervise the workings of all the superior and inferior courts and to make such recommendations to the minister responsible for justice as to the remedies, which appear to it, conductive to a more efficient functioning of such courts;
(b) to advise the minister responsible for justice on any matter relating to the organisation of the administration of justice;
(c) when so requested by the Prim Minsiter, to advise on any appointment to be made in terms of sections 96, 98 or 100 of the Constitution.
(d) to draw up a code or codes of ethics regulating the conduct of members of the judiciary;
(e) on the advice of the Committee for Advocates and Legal Procurators to draw up a code or codes of ethics regulating the professional conduct of members of those professions:
Provided that where such advice is not given within such time as the Commission may establish, the
Commission may draw up such code or codes without the necessity of such advice.
(f) to draw the attention of any judge or magistrate on any matter, in any court in which he sits, which may not be conducive to an efficient and proper functioning of such court, and to draw the attention of any judge or magistrate to any conduct which could effect the trust conferred by their appointment, or to any failure on his part to abide by any code or codes or ethics relating to him;
(g) to exercise, in accordance with any law, discipline over advocates and legal procurators practising their profession; and
(h) such other functions as may be assigned to it by law.
Question ll: How and by whom are judges promoted?
Reply: There is no system of promotion of judges in Malta. All judges are considered to have the same status and they receive the same remuneration, with the exception of the Chief Justice who receives a higher salary. Magistrates have a slightly lower income than judges.
Question 12: What are the criteria for promoting judges? Are they objectively defined?
Reply: Not applicable in Malta.
Question 13: In which cases can a judge be removed from office?
Reply: A Judge can be removed from office only on the ground of (a) proved misbehaviour or (b) proved inability to perform the functions of his office, whether arising from infirmity of body or mind or any other cause.
Question 14: Do you wish to make any comments or mention any practical difficulties with regard to the independence and appointment of judges in your country?
Reply: Maltese judges and Magistrates enjoy security of remuneration and security of tenure. These basic constitutional guarantees go a long way to safeguard their independence. In point of fact, no practical difficulties have been registered in recent years with regard to the independence of Judges. However, it is thought that the present system could be improved further by the implementation of the following suggestions, aimed to raise the level of their guarantees:-
(a) Extend the security of remuneration (which today seems to cover only the salary payable to judges and his terms of office) also to the allowances paid to judges. These allowances, which today amount to almost forty per cent of a judge’s remuneration could, at present, be held to be excluded from such security (see Section 107 (3) of the Constitution);
(b) Shift the responsibility for the appointment of judges from the Prime Minsiter to the Commission for the Administration of Justice; or, if the present system is kept, at least, make it mandatory for the Prime Minister to seek the advice of this Commission when making appointments.
III. THE FUNDING OF THE COURTS
Question l: How are courts’ activities funded?
Reply: The salaries and allowances paid to Judges and Magistrates are a direct change imposed by the Constitution on the Consolidated Fund. All the other funds needed for the Courts’ activities are provided by a vote in the budgetary estimates prepared by the Minister of Finance and approved annually by Parliament. The vote provides for expenditures of a capital and recurrent nature. The Minister of Justice has the responsibility to administer the vote and is responsible for financial and administrative policy.
Question 2: Give a brief description of the rules governing the setting of the budget for the judicial system and the courts.
Reply: The budget must provide the necessary resourses to cover, amongst other needs, the employment, training and the deployment of staff, the provision of the necessary equipment and the maintenance of court buildings.
Question 3: Do judges have any say whatsoever in decisions concerning funding or in managing the budget?
Reply: Judges have no say, at law, in decisions concerning funding or in managing the budget. They have no responsibility regarding administrative and financial matters. However, judges expect to be provided with the necessary human and material resourses to enable them to administer justice effectively. Although the Executive recognises this obligation, results often fall short of expectations. A positive development was noted recently when the Executive involved the judicature in consultations regarding annual budgetary requirements of judges.
Question 4: Do judges have adequate support staff and equipment, in particular office automation and data processing facilities, to ensure that they can act efficiently and without undue delay?
Reply: Although a marked improvement has been made recently, especially in the area of information technology, yet we may not be reaping the full advantage of it, because of lack of adequate support staff and training. Again, the Courts are not managing to attract and retain enough academically qualified and motivated staff. Such staff is indispensable for an efficient justice system, especially when all judges are so overloaded.
Question 5: Do judges encounter other material difficulties, which prevent them from acting efficiently?
Reply: Maltese judges have their share of difficulties including:
1) An insufficient number of judges, to cope with the current workload, including quite a significant backlog;
2) Quite a significant backlog;
3) Judges find it very difficult to keep up to date with the considerable amount of legislation which is enacted every year.
4) Being a small country, our judges are frequently unable to specialise.
Efforts are being made to remedy these difficulties, but there is much room for improvement.
Question 6: Are appropriate measures taken to assign non-judicial tasks to other persons?
Reply: Although judges are not burdened with administrative tasks, however, the excessive workload in the courts could be reduced by assigning certain non-judicial tasks to other persons or authorities. A lot of family court work, like attempting the reconciliation of estranged spouses, the appointment of curators for legally incapacitated or absent persons, the appointment of, and supervision of, testamentary executors, are some examples which come to mind as tasks which are at present performed by judges and which can be, just as well performed by other persons or authorities.
Question 7: General comments on the funding of the courts.
Reply: Maltese judges have practically no say at all, at law, regarding decisions concerning the funding of the Courts or managing their budget. On one hand, this fact can be considered a benefit, as it relieves judges from a non judicial task. On the other hand, this fact can be considered to effect negatively the judges’ independence.
Whilst the evil of underfunding is a problem faced by most courts, it is a fact that our system has worked reasonably well for more than a hundred years. Major problems might arise, however, if the Executive or legislative organs find themselves constrained, for one reason or another , not to prioritise the Courts’ needs, thereby depriving judges from the necessary resources which are indispensible for an effective and efficient administration of justice.