Strasbourg, 14 February 2002

CCJE (2002) 14
English only

Consultative Council of European Judges (CCJE)

Questionnaire on the conduct, ethics and responsibility of judges: reply submitted by the delegation of Malta

Questionnaire on the conduct, ethics and responsibility of judges

Question 1:

What are the statutory obligations by which judges are bound?

Reply 1.1:

Before commencing to perform their official duties all judges must take the oath of allegiance and the oath of office.

This latter oath, contained in Section 10 of the Code of Organisation and Civil Procedure, (‘the C.O.C.P.”) summarises the special duties of a judge who has to act always honestly and fairly and in accordance with the law:-

10. (1) The judges, including acting judges, shall, before entering on the execution of their office, take, before the President of Malta, the oath of allegiance set out in the Constitution of Malta and the following oath:

Oath of Office

(Form of oath of office)

I........Do swear that I will faithfully perform the duties of Judge without favour or partiality, according to justice and right, and in accordance with the laws and customs of Malta, to the honour of God and the Republic of Malta, and that I will not hold, either directly or indirectly, any communication with any suitor in any of the Courts, whether superior or inferior, his Advocates or Legal Procurators, or with any other person on behalf of such suitor, in regard to any suit pending or about to be commenced or prosecuted in any of the said Courts, except in open court, saving the cases expressly provided for by Law; and that I will disclose in open court, and make known to the President of Malta any such communication as may be made to me. And I do further swear that I will not act, either directly or indirectly as an Advocate, or arbitrator, not give in any case counsel or advice to any person in regard to any suit already commenced or to be commenced in any of the said Courts, saving the cases excepted by law, without the permission of the President of Malta first had and obtained upon an application to that effect. So help me God.

(2) Where any communication as is referred to in the form of oath contained in subsection (1) of this section consists in any anonymous letter or in a letter the writer whereof cannot be readily identified, or where any such communication contains insulting or offensive expressions, the judge who received the communication need not read out the communication in open court by may instead disclose in open court the fact of such receipt and shall in any case make the contents thereof known to the President of Malta.

All Magistrates are also obliged to take similar oaths before entering on the execution of their offices (Section 17 of the C.O.C.P.)

1.2:

Section 8 of the C.O.C.P. prohibits Judges from having communication with certain persons to avoid a real likelihood of an improper interference with the course of justice:-

8. (1) Saving the cases expressly provided for in this Code, the judges shall not, except in open court, either directly or indirectly, hold any communication with any suitor in any of the courts, or with any advocate, legal procurator, or other person on behalf of such suitor, in regard to any suit which is pending at the time, or is about to be commenced or prosecuted. Nor shall they, without the permission of the President of Malta, first had and obtained on an application to that effect, act as advocates or in any case give counsel or advice in regard to any suit which they know to be already commenced, or which they foresee as likely to commence.

(2) The provisions contained in this section shall not apply in the case of lawsuits concerning any of the parties mentioned in paragraphs (a), (b), (c) and (e) of section 734.

The text of section 734 is cited in the answer to question 4 infra. Section 15 of the C.O.C.P. applies the same prohibition to all Magistrates, with the following proviso:-

Provided that a magistrate shall not be debarred from holding any communication for the purposes of any inquiry into any criminal matter when such magistrate is holding an Inquiry under Title II of Part I OF Book Second of the Criminal Code.

1.3:

Section 25 of the C.O.C.P. prohibits judges and magistrates from considering any “private” application. Section 26 establishes how such applications are to be presented:-

25. Saving the proviso to section 15, suitors as well as advocates, legal procurators and all other persons acting in the name and on behalf of such suitors, are, under the penalties laid down in section 997, forbidden to make any private application to the judges or to the magistrates in regard to matters pending or to be brought before any of the courts of justice.

26. Any suitor, advocate or legal procurator, desiring to apply to the court for any order, may do so either when the court is sitting or at any other time; but in the latter case, the application must be made through the registrar.

1.4:

The Chief Justice has a duty to call separate meetings of judges and Magistrates, as often as may be necessary, with a view to ameliorate the administration of justice and to reach the aims specified in Sub-section (6) of Section 29 of the C.O.C.P.:-

29. The judges and the magistrates shall meet, as separate bodies, to discuss and seek practical solutions to the problems that arise with respect to the administration of justice; to make recommendations thereon to the Minister responsible for justice, and to co-ordinate the conduct of proceedings and the trial of causes and to ensure that the conduct of proceedings and the trial of causes in any one court conforms with that in other courts. The meetings shall be held as often as may be necessary and shall be called by the Chief Justice, who shall also preside over the respective meetings and regulate the proceedings. Minutes of such meetings and of the Board shall be regularly kept and the Chief Justice shall, on the closing of each forensic year, send to the Minister responsible for justice, a detailed report on decisions reached, recommendations made and solutions sought.

The “Board” referred to in this section is the one established by the same section 29, composed of the Chief Justice, two judges, a magistrate, the Attorney General and the President of the Chamber of Advocates. This Board has the function to make Rules of Court with the object of ensuring a proper and efficient administration of justice.

1.5:

Sub section 7 of section 29 of the C.O.C.P. states:

Subject to the foregoing provisions of this article and to any rules and regulations made thereunder, the judges and the magistrates shall have power to regulate the conduct of proceedings and of the trial of the causes before the respective couts over which they preside, and to give directives for the maintenance of order at the sittings of the court, according to law.

Section 998 of the C.O.C.P. places a duty on Judges and Magistrates to enforce order during sittings and within the precincts of court:-

998.
(1) It shall appertain to the judges and the magistrates espectively to enforce order during the sittings of the courts in which they sit.

(2) It shall also appertain to the judges and the magistrates respectively to provide for the maintenance of good order and decorum within the precincts of the courts in which they sit.

1.6:

Judges and Magistrates are bound to give adequate reasons on which their decisions are based. This requirement is essential to prevent even a suspicion of arbitrariness. It gives credibility to judgmenets and reinforces the public’s confidence in the Courts. Section 218 of the C.O.C.P. states:-

218. The Court shall in the judgment premise the reasons on which the decision of the court is based, and shall include a reference to the proceedings, the claims of the plaintiff and the pleas of defendant.

1.7:

In order to safeguard the principle that justice should be available to litigants within a reasonable time, Section 11 of the Commission for the Administration of Justice Act, 1994, (Act No. XI of 1994) provides:

11. Every judge and magistrate presiding over any court shall, not later than the fifteenth day of January of every year, make a report to the Commission for the Administration of Justice giving a list of all cases pending before the court over which he presides and which have been so pending for a period of five years or more, indicating the report the reasons why each case is still pending and the time within which the judge or magistrate, as the case may be, expects the case to be disposed of by said court.

1.8:

The above are the main statutory obligations by which judges are bound. Needless to say, when hearing and deciding cases, judges are obliged to apply the special procedural and substantive provisions of the law that are applicable to the particular case.

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Question 2:

Is there a judge’s Code of Conduct?

Reply: Yes, there is.

Question 2.1:

If so, who drafted it and who adopted it?

A Code of Conduct for members of the Judiciary, based on a draft prepared by the present writer, was approved by all Maltese judges (except one judge) and all Maltese Magistrates on the 18th April, 2000.

In May, 2000, this Code was presented to the President of the Republic, who besides being the Head of State, is also the Chairman of the Commision for the Administration of Justice.

One of the functions of this Commission is precisely that of drawing up a code or codes of ethics regulating the conduct of members of the Judiciary (Section 101A (11)(d) of Act No. IX of 1994).

As a matter of fact, this Commission substantially adopted the code that had already been approved by the judiciary, with very minor amendments.

Question 2.2:

What are the obligations imposed upon judges?

Reply 2.2:

The Code of Ethics for Members of the Judiciary drawn up by the Commission for the Administration of Justice contains a preamble and twenty eight (28) rules. The Maltese text of Code is the one which is binding at law. The English text of the Code, which is self explanatory, is as follows:-

CODE OF ETHICS FOR MEMBERS OF THE JUDICIARY

PREAMBLE

Article 1O1A(11)(d) of the Constitution of Malta directs the Commission for the Administration of Justice to “draw up a code or codes of ethics regulating the conduct of members of the judiciary”.

Pursuant to the said article the Commission is hereby drawing up this Code after having taken into account rules of ethics to which all Judges and Magistrates have already subscribed. The rules, embodied in this Code have, in substance been accepted and observed by the Maltese Judiciary for a long number of years. This Code in effect reflects these long accepted rules of behaviour.

The aim of this codification is for members of the Judiciary to have a Code of Ethics regulating their conduct and providing them with guidelines that expressly confirm the values they have always adhered to. These values are being brought to the notice of the public so as to strenghten trust in the administration of Justice.

This trust cannot be maintained and reinforced if members of the Judiciary do not conform to this Code and if they fail to observe the highest standards of correct ethical behaviour, and if the State does not ensure that the Judiciary has at its disposal all the necessary means and resources to enable it to carry out its duties efficiently and within a reasonable time.

RULES

1. Members of the Judiciary shall perform their duties with competence, diligence and dedication.

2. Members of the Judiciary shall decide cases assigned to them within a reasonable time, according to the means and resources placed at their disposal by the State and to the volume of work assigned to them. They are to ensure that justice be done by giving each party a fair hearing according to law. Furthermore, they are to ascertain that their decisions shall, whenever required, be duly motivated so to understand the reasoning for such a decision.

3. In order to be able to competently interpret and apply the laws of the land, members of the Judiciary must always be well trained professionally and, within the limits of the means and resources that the State is in duty bound to place at their disposal, they are to keep themselves informed regarding developments in legal and judicial matters.

4. Members of the Judiciary shall carry out their duties with dignity, courtesy and humanity. In particular they are to show respect towards advocates, legal procurators, the parties and witnesses, as well as towards the public and this to ensure the orderly and decorous conduct of the proceedings. Furthermore, they are to ensure that good order and decorum are maintained in the courtroom where they preside and are to ensure that every person conducts himself accordingly in court.

5. Members of the Judiciary shall at all times show respect towards their colleagues, and particularly towards the judgements they pronounce.

6. Members of the Judiciary shall not, save in exceptionally serious circumstances, fail to exercise their duties as members of the Judiciary. Should this legitimate impediment last for some time, the Chief Justice shall be duly informed of this fact as well as the course thereof.

7. Members of the Judiciary shall not accept any post that could hinder them or restrict them in the full and correct performance of their duties.

8. Members of the Judiciary have every right to administer their personal assets and belongings in the manner most beneficial to them. However, they shall not practise any activity that is in its very nature incompatible with the office they hold.

9. Members of the Judiciary shall not hold any post except that of a Judge or Magistrate, saving those posts which are expressly permitted by law.

10. Members of the Judiciary shall inform the Chief Justice of every other post that they might hold both in Malta and overseas, be it remunerated or otherwise.

11. Members of the Judiciary, as other persons, have a right to their private life. However, in this context. members of the Judiciary are to ensure that their conduct is consistent with their office and that it does not tarnish their personal integrity and dignity which are indispensable in the performance of their duties.

12. Members of the Judiciary shall not join organizations, associations or bodies with political leanings, or which in their nature or in the purpose of their existence can be in conflict with their independence or impartiality, nor in any way can they show support even by way of financial assistance. Neither shall members of the Judiciary participate in activities of such organizations, associations or bodies.

Members of the Judiciary shall not associate or show famliarity with persons or associations that could discredit such members of the Judiciary or the office they hold, and they shall avoid conduct that could give rise to a public scandal. In their behaviour members of the Judiciary shall demonstrate respect for the law.

13. Members of the Judiciary shall not discuss out of Court, cases that are pending in court. In full respect of freedom of expression members of the Judiciary should discourage persons from discussing, in their presence cases that are ‘sub judice’.

14. In preparing their decisions, members of the Judiciary may, should they deem it necessary, consult another member or other members of the Judiciary, provided that this be done strictly on the academic point at issue seeking clarification on a point of law. However, they should do so without making reference to the specific case.

15. Members of the Judiciary shall carry out their duties according to the dictates of their conscience, objectively and without fear, favour or prejudice. and in keeping with the laws and customs of the land.

16. Members of the Judiciary, in the performance of their duties, shall set aside all prejudice and decide cases objectively and solely on their legal and factual merits.

17. Members of the Judiciary shall conduct themselves, both in Court and outside Court, in such a manner as not to put into doubt their independence and impartiality or the office they hold.

18. When members of the Judiciary sit on a collegial court and the law provides for one decision, they shall not, directly or indirectly, disclose their votes or opinions nor those of one or more members of that Court, who had a dissenting view.

19. Members of the Judiciary shall not communicate, directly or indirectly, with any of the parties involved in a case, their advocates or legal procurators regarding a case that has not yet been decided upon or one that is about to commence or proceed, except in the manner prescribed by law.

20. Members of the Judiciary are obliged to pronounce in open Court all communications made to them and to inform the President of Malta of such communication as provided for in the Code of Organisation and Civil Procedure.

21. Save in those cases referred to in the Code of Organisation and Civil Procedure, members of the Judiciary shall not act as advocates or give advice or their views regarding a case that they know has commenced or one that they think is likely to commence. As a rule, members of the Judiciary shall not act as character witnesses for any person, particularly if the said person stands accused of a crime, unless compelled by law or in cases involving relatives, and in other cases after having consulted with and obtained the approval of the Chief Justice.

22. Members of the Judiciary shall not act as arbitrators nor shall they undertake any tutorship or other forms of administration except those to which they have been appointed by law or those permitted by law.

23. Members of the Judiciary shall not preside over a case in which they know there exists any one of the reasons for being challenged as provided for in the Code of Organization and Civil Procedure or where there exists a manifest danger or prejudice to fair hearing; in all other cases they are bound not to abstaine from their duty.

24. Members of the Judiciary shall not accept any gift, favour or benefit which might possibly influence them in the proper fulfilment of their judicial duties or which might give an impression of improper conduct.

25. Members of the Judiciary shall not, whether in their private or public life, act in such manner as might imply a political partiality.

26. Although it may be useful and proper to maintain a dialogue between the Bench and other organs of the State, members of the Judiciary shall not however communicate in private with members of the Executive on any matter connected with their duties or functions except through or after express consultation with the Senior Magistrate and/or with the Chief Justice. Nor shall members of the Judiciary individually accept any advantage or benefit from the Executive except when such advantages or benefits are addressed to the Judiciary collectively.

27. Members of the Judiciary shall have the right to form their own professional association in order to safeguard their rights and interests, and individual members of the Judiciary shall be entitled to choose freely whether or not to be members of such a professional association. They shall also have the right to affiliate, whether through such a professional association or individually, with other associations which may better attain or ensure the aims which their association aspires to.

28. Members of the Judiciary shall not comment or grant interviews to the media, or speak in public on matters which are ‘sub judice’. Members of the Judiciary shall avoid communicating with the media and pronouncing themseves in public on matters which constitute a public controversy. In general, members of the Judiciary shall not seek publicity or the approval of the public or the media.

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Question 2.3:

Is there provision for sanctions in the event of violation by judges?

Reply 2.3:

The Code itself does not provide any sanction provisions.

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Question 3:.

What incompatibilities are there between the duties of judge and other functions or professions?

Reply 3.1:

Sections 8 and 9 of the Code of Organisation and Civil Procedure (C.O.C.P.) (which sections are applicable to judges and magistrates) state, inter alia:-

Nor shall they, without the permission of the President of Malta, first had and obtained on an application to that effect, act as advocates or in any case give counsel or advice in regard to any suit which they know to be already commenced, or which they foresee as likely to commence.

(2) The provisions contained in this section shall not apply in the case of lawsuits concerning any of the parties mentioned in paragraphs (a), (b), (c) and (e) of section 734.

9. Moreover, it shall not be lawful for any of the judges to act as an arbitrator, or to accept any tutorship or other administration except such as may be assigned to him by law.

3.2:

Section 16 of the C.O.C.P. provides other prohibitions:-

16. It shall not be lawful for any judge or magistrate to hold any other office of profit whatsoever, even though of a temporary nature, with the exception of any judicial office on any international Court or any international adjudicating body, the office of examiner at the University of Malta and in the case of magistrates the office of visitors of notarial acts.

3.3:

The Code of Ethics for members of the Judiciary drawn up by the Commission for the Adminsitration of Justice establishes various incompatibilities between the duty of judges and other functions. Specific reference to Rules 7, 8, 9, 10, 12, 21 and 22 of the Code reproduced in the reply to Question 2.2 is also being made.

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Question 4:

In what circumstances can the impartiality or apparent impartiality of judges be called into question in accordince with the law or case-law?

Reply 4:

It is the judge’s duty to be, and to appear to be, completely impartial during the conduct of a case. If a ground of bias is apparent, a judge ought to disqualify himself from hearing the case, and in default, he may be challenged from sitting in the case. The C.O.C.P. gives an exhaustive list of the reasons when a judge may abstain or be challenged from sitting in a case. It also provides how such issues are to be raised and determined. The relevant sections, which are self-explanatory, are reproduced hereunder:-

733. The judges may not be challenged, nor may they abstain from sitting in any cause brought before the court in which they are appointed to sit, except for any of the reasons hereinafter mentioned.

734. (1) A judge may be challenged or abstain from sitting in a cause –

(a) if he is related by consanguinity or affinity in a direct line to any of the parties;

(b) if he is related by consanguinity in the degree of brother, uncle or nephew, grand-uncle or grandnephew or cousin, to any of the parties, or if he is related by affinity in the degree of brother, uncle, or nephew, to any of the parties;

(c) if he is the tutor, curator, or presumptive heir of any of the parties; if he is or has been the agent of any of the parties to the suit; if he is the administrator of any establishment or partnership involved in the suit, or if any of the parties is his presumptive heir;

(d) (i) if he had given advice, pleaded or written on the cause or on any other matter connected therewith or dependant thereon;

(ii) if he had previously taken cognizance of the cause as a judge or as an arbitrator:

Provided that this shall not apply to any ecision delivered by the judge which did not definitely dispose of the merits in issue or to any judgment of non-suit of the plaintiff;

(iii) if he has made any disbursement in respect of the cause;

(iv) if he has given evidence or if any of the parties proposes to call him as a witness;

(e) if he, or his spouse, is directly or indirectly interested in the event of the suit;
(f) if the advocate or legal procurator pleading before a judge is the son or daughter, spouse or ascendant of the said judge;

(g) if the judge or his spouse has a case pending against any of the parties to the suit of happens to be his creditor or debtor in such manner as may reasonably give rise to suspicion of a direct or indiret interest that may influence the outcome of the case.

(2) A judge may be challenged or abstain from sitting in a cause when he has previously taken cognizance of and expressed himself on the same merits of that cause when sitting as a judge in the Civil Court, Second Hall.

735. (1) Any judge being aware of the existence in his respect of any of the grounds of challenge mentioned in the last preceding article, shall make a declaration to that effect previously to the trial of the cause, either verbally in open court, in which case a record of such declaration shall be entered in the proceedings of the cause, or in writing, in which case it shall be lodged in the registry before the day appointed for the trial of the cause, notice thereof being given to the parties.

(2) Nevertheless, it shall be lawful for the judge to hear and determine the cause if the parties shall expressly give their consent thereto, unless, in the particular circumstances of the case, he shall deem it proper to abstain from sitting notwithstanding such consent.

736. The existence of any of the grounds of challenge mentioned in article 734 shall not preclude the judge from signing, where necessary, any writ of summons or warrant.

737. Any objection to a judge shall be raised by the parties in open court, and the reasons thereof shall be alleged and, where necessary, proved.

738. (1) Where the court consists only of one judge and such judge is objected to, he himself shall decide on the alleged ground of challenge, and no appeal shall lie against his decision, and he shall either abstain from sitting and rule that a surrogation of another judge is required, or else proceed with the trial, as the case may be.

(2) Where the court consists of more than one judge, all the judges, including the one objected to, shall decide on the ground of challenge, and where there is any reason to doubt as to whether an alleged ground of abstention is a good ground or otherwise, all the judges, including the judge alleging such ground, shall decide on such ground.

739. The challenge of a judge shall not be admissible where the party raising the objection, if the plaintiff, has already submitted his claim at the trial, or, if the defendant, has already set up his pleas in defence, unless the ground of challenge shall have arisen subsequently, or unless the party raising the objection, or his advocate, shall declare upon oath that he was not aware of such ground, or that it did not occur to him at the time.

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Question 5:

Can judges incur criminal or civil liability for acts committed in the performance of their duties? If so: In what circumstances; What is the procedure involved; What is the competent institution or authority; What sanctions or compensatory measures can be applied?

Reply 5:

There are no specific statutory provisions which make Judges civilly liable for acts committed in the performance of their duties. Moreover, no cases have even been brought before the ordinary courts of civil jurisdiction against judges, alleging civil liability in the performance of their duties, under the ordinary provisions of Civil Law regarding obligations in general and more specifically regarding civil torts.

As regards criminal liability, the Criminal Code mentions specifically the crime committed by a Magistrate who fails or refuses to perform his duties regarding a lawful complaint concernng a person who is unlawfully detained (Habeas Corpus). Section 137 of the Criminal Code envisages this crime and the relative sanction:-

137. Any magistrate who, in a matter within his powers, fails or refuses to attend to a lawful complaint touching an unlawful detention, and any officer of the Executive Police, who, on a similar complaint made to him, fails to prove that he reported the same to his superior authorities within twenty-four hours, shall, on conviction, be liable to imprisonment for a term from one to six months.

The Criminal Code has various provisions dealing with crimes against the administration of Justice (Book First, Part II, Title III). Saving what has been said in the previous paragraph, these offences can be committed by all public officers or public employees, whether their duties are judicial, ministerial, executive or mixed.

Thus, it is possible for judges and magistrates to be the subject of these crimes, committed in connection with their office. There are no special courts or tribunals to deal with these particular offences and so, the ordinary courts of Criminal Judicature would deal with them. These crimes and the relative sanctions are reproduced hereunder:-

Sub-title IV

OF ABUSE OF PUBLIC AUTHORITY
§ OF UNLAWFUL EXACTION, OF EXTORTION AND OF BRIBERY

(Unlawful exaction)

112. Any officer or person employed in any public administration, or any person employed by or under the Government, whether authorized or not to receive moneys or effects, either by way of salary for his own services, or on account of the Government, or of any public establishment, who shall, under colour of his office, exact that which is not allowed by law, or more than is allowed by law, or before it is due according to law, shall, on conviction, be liable to imprisonment for a term from three months to one year.

(Extortion)

113. Where the unlawful exaction referred to in the last preceding article, is committed by means of threats or abuse of authority, it shall be deemed to be an extortion, and the offender shall, on conviction, be liable to imprisonment for a term from thirteen months to three years.

(Aggravating circumstances)

114. Where the crimes referred to in the last two preceding articles are accompanied with circumstances which render such crimes liable also to other punishments, the higher punishment shall be applied with an increase of one degree.

(Bribery)

115. Any public officer or servant who, in connection with his office or employment, receives or accepts for himself or for any other person, any reward or promise or offer of any reward in money or other valuable consideration or of any other advantage to which he is not entitled, shall, on conviction, be liable to punishment as follows:

(a) where the object of the reward, promise or offer, be to induce the officer or servant to do what he is in duty bound to do, the punishment shall be imprisonment for a term from three to nine months;

(b) where the object be to induce the officer or servant to forbear from doing what he is in duty bound to do, the punishment shall, for the mere acceptance of the reward, promise or offer, be imprisonment for a term

from four to eighteen months;

(c) where, besides accepting the reward, promise, or offer, the officer or servant actually fails to do what he is in duty bound to do, the punishment shall be imprisonment for a term from six months to three

years.

(Where failure of duty consists in passing sentence on defendant or person accused)

116. (1) Where the crime referred to in paragraph (c) of the last preceding article consists in sentencing a defendant or person accused, the punishment shall be imprisonment for a term from one year to four years:

Provided that in no case shall the punishment be lower than that to which the defendant or person accused has been sentenced.

(2) Where the punishment to which the defendant or person accused is sentenced is higher than the punishment of imprisonment for four years, such higher punishment shall be applied.

(Where failure of duty consists in releasing a person charged or in discharging a defendant or person accused)

117. Where the crime referred to in article 115(c) consists in the release of a person charged with an offence, or in the discharge of a defendant or person accused, the punishment shall be as follows:

(a) where the charge, complaint, or indictment be in respect of a crime liable to a punishment higher than that of imprisonment for a term of two years, the punishment shall be imprisonment for a term from eighteen months to three years;

(b) where it be in respect of an offence liable to a punishment not higher than that of imprisonment for a term of two years, but not falling in the class of contraventions, the punishment shall be imprisonment for a term from nine months to two years;

(c) where it be in respect of a contravention, the punishment shall be imprisonment for a term from four to twelve months.

.........Omissis.........

(Cases in which punishment of general interdiction is applied)

119. The punishment of perpetual general interdiction shall be added to the punishments established in the preceding articles of this sub-title when the maximum of such punishments exceeds two years’ imprisonment; when the maximum of the said punishments does not exceed two years’ imprisonment, then the punishment of temporary general interdiction shall be added.

..........Omissis.......

§ OF MALVERSATION BY PUBLIC OFFICERS AND SERVANTS

(Private interest in adjudications, etc.)

124. Any public officer or servant who shall overtly or covertly or through another person take any private interest in any adjudication, contract, or administration, whether he holds wholly or in part the direction or superintendence thereof, or held such direction or superintendence at the time when such adjudication, contract, or administration commenced, shall, on conviction, be liable to imprisonment for a term from one to six months and to perpetual interdiction from his public office or employment.

(Private interest in the issuing of orders, etc.)

125. Any public officer or servant who takes any private interest in any matter in respect of which he is entrusted with the issuing of orders, the winding up of accounts, the making of arrangements or payments of any sort, shall, on conviction, be liable to the punishments laid down in the last preceding article.

(Aggravating circumstance)

126. Whenever, in the cases referred to in the last two preceding articles, any loss is fraudulently caused to the administration to which the matter belongs, the punishment shall be imprisonment for a term from eighteen months to three years, with interdiction as provided in those articles.

(Embezzlement)

127. Any public officer or servant who for his own private gain, misapplies or purloins any money, whether belonging to the Government or to private parties, credit securities or documents, bonds, instruments, or movable property, entrusted to him by virtue of his office or employment, shall, on conviction, be liable to imprisonment for a term from two to six years, and to perpetual general interdiction.

..........Omissis.............

§ OF ABUSE OF AUTHORITY, AND OF BREACH OF DUTIES

PERTAINING TO A PUBLIC OFFICE

(Disclosing official secrets)

133. Any public officer or servant who communicates or publishes any document or fact, entrusted or known to him by reason of his office, and which is to be kept secret, or who in any manner facilitates the knowledge thereof, shall, where the act does not constitute a more serious offence, be liable, on conviction, to imprisonment for a term not exceeding one year or to a fine (multa).

(Unlawful continuance in office or employment)

134. Any public officer or servant who, having been dismissed, interdicted, or suspended, and having had due notice thereof, continues in the exercise of his office or employment, shall, on conviction, be liable to imprisonment for a term from one to six months.

(Obstruction of execution of law by public functionaries)

135. Any person vested with public authority who, by any unlawful measures devised with other persons, hinders the execution of the law, shall, on conviction , be liable to imprisonment for a term from eighteen months to three years.

(Unlawful domiciliary entry by public officials)

136. (1) Any public officer or servant who, under colour of his office, shall, in cases other than those allowed by law, or without the formalities prescribed by law, enter any house, or other building or enclosure belonging to any person, shall, on conviction, be liable to imprisonment for a term not exceeding three months or to a fine (multa or ammenda).

(Aggravating circumstances)

(2) Where it is proved that the entry has taken place for an unlawful purpose or for a private advantage, the offender shall, on conviction, be liable to imprisonment for a term from one to twelve months.

(Failure or refusal of magistrates or Police to perform certain duties)

137. Any magistrate who, in a matter within his powers, fails or refuses to attend to a lawful complaint touching an unlawful detention, and any officer of the Executive Police, who, on a similar complaint made to him, fails to prove that he reported the same to his superior authorities within twenty-four hours, shall, on conviction, be liable to imprisonment for a term from one to six months.

(Malicious violation of official duties)

138. Any public officer or servant who shall maliciously, in violation of his duty, do or omit to do any act not provided for in the preceding articles of this Title, to the oppression or injury of any other person, shall, on conviction, be liable to imprisonment for a term not exceeding three months or to a fine (multa):

Provided that the court may, in minor offences, award any of the punishments established for contraventions.

(Aggravating circumstance)

139. Where the injurious or oppressive act is one of those mentioned in articles 86, 87, 88 and 89, the offender shall, on conviction, be liable to the punishment laid down in those articles respectively, increased by one degree.

(Torture and other cruel, inhuman or degrading treatment or punishment)

139A. Any public officer or servant or any other person acting in an official capacity who intentionally inflicts on a person severe pain or suffering, whether physical or mental –

(a) for the purpose of obtaining from him or a third person information or a confession; or
(b) for the purpose of punishing him for an act he or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating him or a third person or of coercing him or a third person to do, or to omit to do, any act; or

(d) for any reason based on discrimination of any kind, shall, on conviction, be liable to imprisonment for a term from five to nine years:

Provided that no offence is committed where pain or suffering arises only from, or is inherent in or incidental to, lawful sanctions or measures:

Provided further that nothing in this article shall affect the applicability of other provisions of this Code or of any other law providing for a higher punishment.

(Additional punishment of interdiction)

140. In the cases referred to in articles 133 to 139 inclusively, the court may, in addition to the punishment therein laid down, award the punishment of temporary or perpetual general interdiction.

GENERAL PROVISION APPLICABLE TO THIS SUB-TITLE

(General provision)

141. Saving the cases where the law specifically prescribes the punishment to which offences committed by public officers or servants are subject, any public officer or servant who shall be guilty of any other offence over which it was his duty to watch or which by virtue of his office he was bound to repress, shall, on conviction, be liable to the punishment laid down for such offence, increased by one degree.

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Question 6:-

Can judges be subject to disciplinary proceedings?

Reply:-

Yes. It is also pointed out that all the replies to question apply also “in toto” to Magistrates.

Question 6.1:

If so, in what circumstances?

Reply 6.1.l

Disciplinary proceedings against a judge, leading to his removal from his office, can only be taken on two grounds namely: (a) proved inability to perform the functions of his office (whether arising from infirmity of body or mind or any other cause) or (b) proved misbehaviour. Section 97 (2) and (3) of the Constitution of Malta states that:-

91 (2) A judge of the Superior Courts shall not be removed from his office except by the President upon an address by the House of Representatives supported by the votes of not less than two-thirds of all the members thereof and praying for such removal on the ground of proved inability to perform the functions of his office whether arising from infirmity of body or mind or any other cause) or proved misbehaviour.

(3) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the inability of misbehaviour of judge of the Superior Courts under the provisions of the last preceding sub-article.

6.1.2:

Section 101A (11)(f) of the Constitution of Malta gives the power to the Commission for the Administration of Justice “to draw the attention of any judge or magistrate” whenever any of these circumstances occur:-

(a) on any matter, in any court in which he sits, which may not be conducive to an efficient and proper functioning of such court; or

(b) to any conduct which could affect the trust conferred by their appointment; or

(c) to any failure on his part to abide by any code or codes of ethics relating to him.

The relative provision of the law states that one of the functions of the said Commission 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 functioning of such court, and to draw the attention of any judge or magistrate to any conduct which could affect the trust conferred by their appointment or to any failure on his part to abide by a code or codes of ethics relating to him.

Question 6.2:

What is the procedure involved?

Reply 6.2.1:

The procedure leading to the removal of a judge or magistrate from his office is established by Section 97 of the Constitution of Malta already cited. Section 8 of the Commisson for the Administration of Justice Act, 1994, (Act o. 41 of 1994) has conferred on the said Commission the function and power to carry out investigations on any judge or magistrate in connection with an addess as is referred to in Section 97 of the Constitution and this in accordance with the following sections which appear as sections 9 and 10 of the same Act, which sections are self-explanatory:-

(Procedure to be followed under section 97 of the Constitution)

9. (1) Where notice is given in the House of Representatives of a motion for presenting an address to the President as is referred to in subsection (2) of section 97 of the Constitution, the Speaker shall, without allowing any publicity, keep the motion pending, and shall refer the same for investigation to the Commission.

(2) The motion shall contain definite charges against the judge or the magistrate, as the case may be, on the basis of which the investigations are to be held. Together with the motion there shall be filed a statement showing the grounds on which each of such charges is based.

(3) Such charges together with such statement shall be communicated to the judge or magistrate as the case may be, and he shall be given a reasonable opportunity to present a written statement of defence within such time as may be specified by the Commission.

(4) The Commission shall carry out the necessary investigation and make a report thereon to the Speaker. If the report of the Commission contains a finding that there is no misbehaviour or that the judge or magistrate does not suffer from any inability, then, no further steps shall be taken in the House in relation to the report and the motion pending in the House shall not be proceeded with.

(5) If the report of the Commission contains a finding prima facie that the misbehaviour or incapacity has been proved then, the motion referred to in subsection ( 2) of section 97 of the Constitution shall, together with the report of the Commission, be taken up for consideration by the House.

(6) If upon consideration by the House, it is satisfied that the misbehaviour or incapacity has been proved and if the motion is adopted by the House in accordance with the provisions of subsection ( 2) of section 97 of the Constitution then the misbehaviour or inability of the judge or magistrate, as the case may be, to perform the functions of his office shall be deemed to have been proved and an address praying for the removal of the judge or magistrate, as the case may be, shall be presented to the President by the House in the same session in which the motion has been adopted.

(7) Proceedings by the Commission under this section shall be held in camera. The member of the House presenting the motion and the judge or magistrate whose conduct is being investigated shall have a right to be present during the whole process, to produce witnesses in support of the charges set in the motion or in defence, and to be assisted by any advocate or legal procurator.

(Medical Board)
10. (1) Where it is alleged that the judge or magistrate is unable to perform the functions of his office because of infirmity of body or mind and the allegation is denied, the Commission may order the medical examination of the judge or magistrate by such medical board as may be appointed for the purpose by the President and the judge or magistrate, as the case may be, shall submit himself to such medical examination within the time specified by the Commission.

(2) The medical board shall submit a report to the Commission stating therein whether there exists any infirmity of body or mind, as the case may be, and in case such infirmity exists, whether it renders the judge or magistrate unable to perform the functions of his office.

(3) If the judge or magistrate refuses to undergo any medical examination considered necessary by the medical board, the Board shall submit a report to the Commission stating therein the examination which the judge or magistrate has refused to undergo, and the Commission may, on receipt of such report, presume that the judge or magistrate suffers from such infirmity of body or mind as is alleged in the relative motion referred to in subsection (1) of section 10 of this Act.

6.2.2:

The law does not lay down any specific procedure by which the Commission of the Administration of Justice is “to draw the attention” of any judge or magistrates in the cases mentioned in the reply 6.1.2. The present writer is of the opinion that this is a lacuna in the law.

Question 6.3:

What is the competent institution on authority?

Reply 6.3.1:

In case of disciplinary proceedings undertaken to remove a judge or magistrate from his office, the competent authority is 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 the members of the House praying for such removal. Reference to the dispositions already reproduced above is made as to the law regulating the procedure for the presentation of the said address and for the investigation by the Commission for the Administration of Justice and the proof of the inability or misbehaviour of the judge or magistrate.

6.3.2:

In the case of the other proceedings (which also seem to be of a disciplinary nature) it is the said Commission which is competent to act.

Question 6.4

What disciplinary actions can be imposed?

Reply 6.4:

The Constitution of Malta provides only two sanctions either just “drawing the attention” of the judge or Magistrate to some impropriety committed, or, in case of proved inability or misbehaviour, the ultimate sanction is the removal of the judge or magistrate from his office.

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