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Malta Edwin Busuttil*

Malta is a unitary state with a monarchical form The territories of Malta comprise the Island of of government. It came into existence as an Malta, the Island of Gozo, and the other islands of independent state on 21 Sept. 1964, in virtue of the Maltese Archipelago, including the territorial the Malta Independence Act passed by the United waters thereo£ Kingdom Parliament in the same year (1964, c. 86).

I. CONSTITUTIONAL SYSTEM

Privy Council" on 2 Sept. 1964 (S.I. 1964 no. I. Nationality 1398). Maltese nationality is unitary, but a citizen of The power of government in Malta is vested in Malta, by virtue of his Maltese citizenship, also the Head of State and Parliament. In this Malta has the common status of a Commonwealth follows the United Kingdom pattern of parlia­ citizen in common with the citizens of other mentary democracy. countries in the British Commonwealth. In Malta the Constitution is supreme and the Maltese citizenship is acquired by birth or de­ Constitutional Court is empowered to decide on scent, or by registration or naturalization under the constitutionality of legislation. certain conditions. It may be lost by voluntary The machinery for amending the Constitution renunciation, by automatic cessation in the event is somewhat involved, for many provisions of the of dual nationality, or by deprivation by the state Constitution are entrenched. Entrenchment takes in certain circumstances where citizenship was two forms. One group of entrenched sections can originally acquired by registration or naturaliza­ only be amended if an amending Bill is passed by tion (Canst. s. 23- 32 and the Maltese Citizenship a two-thirds majority of the total membership Act, 1965). of the House of Representatives on the final vote. Another group ofsections requires, in addition, an affirmative vote in a referendum after a period of 2. Territorial Division not less than three nor more than six months ofits It has not been found necessary, having regard to passage through the House. Sections not entrench­ the small size of the whole territory, to divide ed may be altered by a majority of all the members Malta into regions for administrative purposes, of the House. though the Island of Gozo has a limited form of local government (infra 3e). b. Head ofState . -Queen Elizabeth II, Queen ofthe For electoral purposes, however, the territories United Kingdom, is also the Queen of Malta. A of Malta are divided into 10 constituencies. Governor-General, appointed by the Queen on the recommendation of the Maltese Government, is the Queen's representative in Malta and acts on 3. State Organs her behalf. a. General structure. - The fundamental laws em­ In Malta, as in most other constitutional mon­ bodying the Constitution of Malta are contained archies, the Governor-General acts on the advice in the Malta Independence Act passed by the of the Prime Minister, who is the political leader Parliament of the United Kingdom on 31 July of the country, except in the exercise of those 1964, and the Malta Independence Order in powers which are stated in the Constitution to be Council, with its accompanying Schedule, issued exercisable in his discretion (Const. s. 86). In by Her Majesty "by and with the advice of Her general, these relate to the dissolution of Parlia-

* Professor and Dean of Law, The Royal Univer­ sity of Malta, Valletta. National Reports

(2 )) and the Cabinet must resi~n as a body if the ment in certain specified circumstances, a~d .to the legislature gives ~o~ e:cpressxon to lack of con~ appointment or removal of the Prime Minister. fidence in its poliCles or Its personnel.

c. Legislative body.- Malta has~ uni~er~ legi: Territorial authorities. -A restricted form oflocai lature. The legislative authonty resides m ~ e~vemment was established in the Island of Gozo Governor-General and the House ofRepresentatl­ f y the Gozo Local Government Ordinance (Or­ ves but a rather unusual provision in the Con­ dinance XI of 1961), enacted by the then Gover­ lays it down that when a Bill is presented sti~tion nor. The Ordinance provides for the creation of to the Governor-General "he shall without delay a Civic Council in Gozo, composed of 14 members signify that he assents" (Const. s. 73 (2)).. . which empowered to discharge certain locai Broadly speaking, citizens of Malta resxdent m is functions, chiefly with relating Malta who have attained the age of 2! years are connect~d ~tters entitled to vote for members of the House of to public works and pubhc health m the Island. Representatives, who are elected on a syste'? of proportional representation by means of a s~gle 4· Judiciary transferable vote. The House of Representatives consists of 55 members, but it is constitutionally a. The constitutional judiciary. - The Constitution possible for the Speaker to be elected fro.m out­ establishes a Constitutional Court and defines its side the House, in which case he is, by vrrtue of jurisdiction (Const. s. 96 (2)). holding the office of Speaker, also a member of The Court has (1) exclusive original jurisdiction the House in addition to the other 55 members. in electoral cases, and (2) appellate jurisdiction The House of Representatives is empowered to from decisions of lower courts on alleged viola­ legislate for the peace, order and good govern­ tions of the Fundamental Human Rights enumer­ ment of Malta, but the Constitutional Court has ated in the Constitution and on questions relating jurisdiction to invalidate any law which runs to constitutional interpretation or to the consti­ counter to the provisions of the Constitution, tutional validity of ordinary legislation. Appeal though the Constitution itself is capable of to the Privy Council has been abolished (Canst. amendment in the prescribed manner (Const. s. of Malta (Amendments) Act, 1972). 67). The party system plays an essential part in the b. Judicial organiz ation. - Courts ofJustice in Malta working of the Constitution. The party which are either inferior or superior. wins the majority of seats at a General Election The i11[erior courtS are (I) the Court of Magis­ forms the Government. The larger minority party trates ofJudi cial Police for the Island ofMalta, and becomes the Opposition, and its leader is accorded (2) the Court of Magistrates for the Islands of official recognition as Leader of the Opposition Gozo and Comino. (Const. s. 91). In civil m atters, appeals lie (1) from the Court of Magistrates for Malta to the Court of Appeal d. Government. - The executive authority of constituted by one judge, and (2) from the Court Malta is nominally vested in the Queen and is of Magistrates for Gozo and Camino, to Court exercised by the Governor-General on her behal£ a The Governor-General appoints as Prime Minister of three magistrates in Gozo or, in appropriate the member ofthe House ofRepresentatives who cases, to the Court of Appeal in Malta. in his judgment, is best able to command th; In criminal matters, appeals lie to the Court of support of the majority of members. Members of ~ri_minal, Appeal in Malta composed ofone judge, the Cabinet are chosen by the Prime Minister and Sittmg Without a jury. are .appointed by the Governor-General on the . ~he s~perior courts are (1) the Civil Court, adVIce of the Prime Minister. divxded mto First Hall (contentious jurisdiction) The Cabinet is the real executive authority and Second Hall (non-contentious jurisdiction); 2 though its a~ are, ~ form, acts of the Governor~ ( ) the Commercial Court which is also an Ge~eral on Its advice. The Cabinet formulates Admira.l~ Court; (3) the Court of Appeal; (4) policy and sponsors most of the important . 1 . h d . f 1egis ­ ~e. Cru~unal Court, composed of one judge atxon, t ~ a optton o which it can usually obtain smmg With a jury and (5) the Court of Criffi.inal through Its control of the ma· ority of th . Appeal. t Th d · 1 e 1egis 1 a- ure. e octnne of Cabinet respons1 'bill The Court of Appeal hears and determines ~hereby the Cabinet as a whole is h ld ty, appeals from judgments of the Civil Court. F~t SI~l~ for ~e. official acts and policies of incll~fd:~ Hall,_ and the Commercial Court, while a partY muusters, 1s mcorporated in the Constt't n· ( u on s. 8o aggneved by a decree of the Civil Court, Second Hall, may bring an action before the Civil Court. III Malta M-47 First Hall The Court of Criminal Appeal d f thr · d h ' com- d. Prosecution. - The principal law officer is the pose of th eeCJ~ ~esal, ears appeals from judg- ments o e runm Court, other than · udg- Crown Advocate-General, who holds a public ments of acquittal. J office and is appointed by the Governor-General Appeal from the Court of Appeal to the p · acting in accordance with the advice of the Prime Council has been abolished (supra a). nvy Minister. In the exercise ofhis powers to institute or to discontinue public prosecutions, the Crown Advocate-General acts in a quasi-judicial capacity c. Administrativ. . e tribunals.-. f In Malta, as elsewhere, the contmumg extenston o governmental activity and is not subject to the direction or control ofthe government of the day. and responsibility for the general well-being ofthe The Crown Advocate-General cannot be community in the post-war years has led to a sub­ removed from his office except by the Governor­ stantial growth in the number and importance of General upon an address by the House of Repre­ Administrative Tribunals. In fact, so varied have sentatives, supported by the votes ofnot less than they become in constitution, function and proce­ two-thirds of its total membership, praying for dure that a classification which is both succinct such removal on the ground of proved misbeha­ and satisfactory is impossible. viour or proved inability to perform the fUnctions of his office.

II. SOURCES OF LAW

Modem Maltese law is derived from the following sion, a jurisprudence constante, on a particular point. sources: (1) Statute law, which includes the Con­ Similarly, the critical writings of distinguished stitution itself, the five Codes forming part of the jurists are frequently cited in the Maltese Courts Revised Edition of the Laws of Malta, and other and, while not considered to have binding author­ Acts of Parliament and subordinate legislation ity, are treated by the judges with considerable made thereunder; (2) Commercial custom, origi­ respect. nating in unwritten traditions built up over the The official collection of laws is the Revised centuries; (3) judicial decisions and the opinions of Edition ofthe Law ofMalta (Rev.Ed.) which came institutional writers. into force on 3 r Dec. 1942. The arrangement of The fundamental law of Malta is the Constitu­ the laws in the Revised Edition is chronological. tion which came into force on 21 Sept. 1964. The Each law is referred to as "Chapter" and has a Constitution is supreme and if any legislation is serial number. Among the more important inconsistent with the Constitution, the Consti­ Chapters are those embodying the five Codes, tution shall prevail and such other legislation shall, namely, Chapter 12 (The Criminal Code), Chap­ to the extent of the inconsistency, be null and ter 13 (The Code of Police Laws), Chapter 15 void. Subject to the provisions of the Constitu­ (The Code of Organization and Civil Procedure), tion, Parliament is the supreme law-making body Chapter 17 (The Commercial Code), and Chapter in Malta, so that statute law takes precedence over 23 (The Civil Code). A yearly volume has been other sources of law. published from 1943 onwards embodying the A judicial decision, even by the highest court laws enacted during a particular year; these laws in the land, does not constitute a binding prece­ are quoted by their numbers and the year of dent. Nevertheless, any reported judgment has enactment. The official collection of judicial some measure of persuasive weight, and this decisions is known as Decisioni delle Corti Superiori persuasive weight steadily increases as the courts di Malta. progressively establish a uniform course of deci-

ill. HISTORICAL EVOLUTION

The first known settlers in Malta were the Phoe­ tainly due to the all-pervading influence ofRoman nicians, but Maltese law shows no traces of either law during the period of the Roman occupation Phoenician law or custom. This was almost cer- between 216 B.C. and 870 A.D., when justinian's National Reports

Corpus Juris was expressly enforced in Malta. Nor having been superseded by English Common or did its influence cease with the Roman occupation, Statute Law as was then the case in settled Colo­ for Roman law permeated the Norman legislation nies under the authorization of the Crown. Nev­ which was applied in Malta between 1090 and ertheless, the development of Maltese private law, 1194 A.D., as also the legislation of the Order of while remaining under European and Roman St. John of Jerusalem which was promulgated in influence, gained much momentum during the the Island between 1530 and 1798. period of British rule. In fact, it was during the The modern period ofMaltese legislation begins latter part of the nineteenth century that the Civil with the advent of British rule in 1802, as a result and Commercial Codes (now incorporated in the of the voluntary cession of the Island by the Revised Edition of the Laws of Malta) were pro­ Maltese to His Britannic Majesty. As a ceded mulgated, however much their compilers may territory, the existing Maltese legal system conti­ have drawn inspiration from the legal systems of nued in being, and there was no question of its the Continent of Europe.

IV. CIVIL LAW

The main source of the civil law is the Civil Code Civil Code of 1865. (Rev. Ed. Chapter 23), which was originally Furthermore, the Canon law is part of the civil enacted as Ordinance VII of I868, dealing with law of Malta in the matter of the celebration and the Law of Things, and Ordinance I of I873, dissolution of marriage, and Roman law remains dealing with the Law of Persons. In spite of the a great source of interpretation with regard to fact that they were enacted during the period of those statutory provisions having their origin in British rule, these Ordinances contain no traces of Justinian's Corpus Juris. English law. They were largely influenced by the The Revised Edition incorporates all amend­ French Civil Code of I 804, though a number of ments to the Civil Code enacted up to 1942, while provisions were also borrowed from the Codes of other amendments are contained in the yearly Sicily, Sardegna, Parma, Piedmont and the Italian volumes published from I943 onwards.

V. COMMERCIAL LAW

The main source of the commercial law is the embodied in Ordinances XV to XIX of I858, Commercial Code( Rev. Ed. Chapter I7), origin­ have now been supplemented and, in certain ally enacted as Ordinance XIII of I857, dealing matters, superseded by the Merchant Shipping with Trade in General, and Ordinances VX, XVI, Act, 1973. XVII, XVIII and XIX of I858, dealing with Where no provision is made in the Commercial Maritime Trade Ordinance XIII of I 857 followed Code, the usages of trade acquire the force oflaw. closely the provisions of the French Commercial English law constitutes an important source of Code of I8o8. The principles of maritime law such commercial usages.

VI. STATE DIRECTION OF TRADE

The exportation of goods from Malta and the tions, the exportation of all goods from Malta is, importation of goods into Malta is under the in principle, made subject to the grant of an ex­ control of the Minister of Trade, h1dustry and port licence, but Regulation 3 (3) then proceeds to Agriculture. In exercise of the powers conferred grant what is described as an "open general licen­ on him by the Supplies and Services Act, I947 ce" for the exportation ofgoods grown or mainly (Act no. IV of I947) s. 3, the Minister has enacted manufactured in Malta listed in the Schedule to two sets of Regulations, viz., the Exportation the Regulations. Similarly, although in general a (Control) Regulations, 1948 and the Importation licence is required for the importation ofall goods (Control} Regulations, 1969. into Malta, Regulation 5 of the Importation In virtue of the Exportation (Control) Regula- (Control) Regulations grants an open general IX Malta M-49

licence for the importation of goods not included import licensing system is the creation ofa healthy in the Schedule to the Regulations ifthey originate balance of payments, and the Schedule therefore in the so-called Relaxation Area and in the Dollar lists the goods the importation of which would Area, irrespective ofthe country from which they tend to interfere with the diversification and are consigned. The underlying purpose of the general development of the national economy.

VII. INDUSTRIAL PROPERTY AND COPYRIGHT

r. Industrial Property is regulated by the Industrial 2. Copyright matters are governed by the Copy­ Property (Protection) Ordinance, 1899 (Rev. Ed. right Act, 1967 (Act VI of 1967) which was Chapter 48), which is virtually a reproduction of brought into operation on I Jan. 1970 by notice the old English Statute, the Patents, Desings and issued in the Government Gazette by the Minister Trade Marks Act of 1883. It makes provision for of Trade, Industry and Agriculture. Before that the protection of trade marks, patents, and designs date, copyright was still governed by an old and models of manufacture, and has not been Imperial Statute of the United Kingdom Parlia­ amended to any substantial extent since it was ment, the Copyright Act, 19II, which before originally enacted. Independence had been made applicable to Malta It should be noted that marks which are not as a Dependency of the Crown by Proclamation registrable in terms of the Industrial Property VI of 28 June 1912. (Protection) Ordinance are nevertheless entitled to The Copyright Act, 1967, is to a very large protection wtder the general principles of the extent modelled on the British Copyright Act, Commercial Code prohibiting unfair competi­ 1956, and the Universal Copyright Convention tion. In this connection, traders are prohibited signed at Geneva on 6 Sept. 1952. Literary, musi­ from making use of any mark or distinctive cal and artistic works other than photographs device which is capable of creating confusion in enjoy copyright for a period of 25 years after the the public mind with any other mark or distinc­ end of the year in which the author dies. tive device already lawfully used by others(Comm. C. s. 36).

VIII. LAW OF CIVIL AND COMMERCIAL PROCEDURE

The Law of Civil Procedure is contained in the court or other adjudicating authority, the indivi­ Code of Organization and Civil Procedure (Rev. dual shall be afforded a fair and public hearing Ed. Chapter 15), which was originally enacted as within a reasonable time by an independent and Ordinance IV of I 854 and based, in essence, on impartial tribunal. the French Code de Procedure Civil of 1807 and on There is no separate Code of Commercial local custom. Procedure, and the Commercial Court exercises The underlying purpose of this legislation is to jurisdiction in accordance with the provisions of give effect to the overriding principle (which is the Code of Organization and Civil Procedure. now embodied in Const. s. 40) that, in the deter­ Bankruptcy proceedings, however, are governed mination of the existence or the extent of civil by the provisions of the Commercial Code (Rev. rights and obligations in proceedings before any Ed. Chapter 17).

IX. PRIVATE INTERNATIONAL LAW AND INTERNATIONAL LAW OF PROCEDURE

Maltese private international law and international Procedure (CC s. 719 and 136o and Code of law ofprocedure is not codified, although one. o_r Organization and Civil Procedures. 743, 829 and two principles have found their way into the C~v~ 830). Code and the Code of Organization and Clvtl National Reports M-so validly obtained by a Maltese spouse in another 1. Private International Law country is incapable oflegal enforcement in Malta there is very little difference and re-marriage in Malta is equivalent to bigamy. B roadl Y speaking ' · th r: ld between Maltese law and English l~w m e r1~ ofprivate international law. Thus, m a long s_en~s 2. International Law of Procedure of judgments, the Maltese Co~ts ~ave lal~ lt down that English principles ofpnvate mternatwn­ The Maltese Courts will exercise local and inter­ al law are to be followed where no correspon~­ national jurisdiction in respect of those persons ing Maltese principles exist. _Nevertheless, there 1s indicated in the Code of Organization and Civil a conspicuous divergence m at least. one ve~ Procedures. 743, e.g., any person as long as he is important respect, i.e., the law of ma~nage, fo~ ~ domiciled in Malta or in matters regarding pro­ Malta the Civil Code only deals Wlth the _c1vil perty situate in Malta. effects of marriage and does not concern 1tself Foreign judgments generally are enforced in with questions relating to its celebration or dis- Malta provided that they are not defective in solution. terms of the Code of Organization and Civil These questions are governed by th~ ~anon !aw Procedure s. 830, e.g., provided that the foreign ofthe Roman Catholic Church, and c1vil marnage judgment is not contrary to Maltese public policy. and divorce are therefore unknown in Malta. British judgments are treated as a separate cate­ Consequendy, the Maltese Courts will declare gory and are given effect to through the simplified null and void all marriages not solemnized in procedure provided for in the British Judgments accordance with the formalities prescribed by the (Reciprocal Enforcement) Act, 1924, which is an Canon law, where at least one of the spouses is a exact duplicate of the United Kingdom Statute Maltese Catholic. Furthermore, a divorce decree the Administration ofJustice Act, 1920. '

X. SELECTIVE BIBLIOGRAPHY

Chapter IV: Zammit Pace, The Juridical Capacity of the I. Books and Articles Married Woman. A Comparative Study (Thesis, General: Maxwell, A Legal Bibliography of the British University of Malta 1964); Dimech, Dei contratti e Commonwealth of Nations (ed. 2 London 1964) delle obligazioni in generale {1861); Lia, Contracts, [Malta) 384-394; Mifsud, Origine della Sovranita which Negative the Right of Pre-Emption (Thesis, Inglese su Malta (1907); Pace, The Position and General University of Malta 1958); Bugeja Caruana, Stipula­ Organization of the Legal Profession in the Maltese tions for the Benefit of Third Parties. A Comparative Islands Throughout the Domination of the Knights of Study (Thesis, University of Malta 1964); Brincat, St. John and up to the Third Decade of Britisch Rule Promise of Sale (Thesis, University of Malta 1969); (Thesis, University of Malta 1961). Abdilla, The Rendering of Services (Thesis, University of Malta 1959); Busuttil, The Province of the Doctrine Chapter I: Ganado, British Public Law and the Civil of Unjustified Enrichment: 3 Malta L.J. 121- 146 Law in Malta (London 1950); Cremona, ].]., Human (1952); Agius, Quantum of Damages in Injury Claims Rights Documentation in Malta (1966); Busuttil, The (Thesis, University of Malta 1969); Micallef Trigona, Frontiers of Human Rights (1966); Gulia, Local A., Hire Purchase and the Pactum Reservati Dominii Government in Malta (1967); Busuttil, The Monarchy in Maltese Law (Thesis, University of Malta 1958); and the Commonwealth (1972); Cremona, ] .]., The Cassar Vassallo, The Eviction of Lessees of Urban Jury System in Malta: 13 Am.J.Comp.Law 570- 583 Property {Thesis, University of Malta 1969); Micallef, (1964). F., The Right of Preference in Emphyteusis (Thesis, University of Malta 1958); Bonello, Promises of Mar­ Chapter II: See supra text sub II. riage in Maltese Law (Thesis, University ofMalta 1958); Cremona, ].]., The dornicilium necessarium of Chapter III: Debono, Sommario della Storia della th_e Married Woman (1948); Scicluna, The Paren~s' Legislazione in Malta (1897); Cremona, ].]., An Out­ Right of Custody and State Intervention (Thests, line of the Constitutional Development of Malta Univ~rsity of Malta 1958); Fenech Adami, The Action under British Rule (1963); Harding, Maltese Legal for Dtsavowa1 (Thesis, University of Malta 1958). Hist~ry Under British R~e 1801-1836 (1968); idem, A History of Roman Law m Malta (1950); Costarella Chap~er V: Camilleri,]., The Usages of Trade in Com­ La legislation de l'Ordre Hierosolyrnitain dans 1; mereta! Sales (Thesis, University of Malta 19()9); gouvernement de Malte: Revue de l'Ordre Souverain Cammilleri Preziosi, A Brief Study of the Most Impor­ Militaire de Malte, Juillet/Septembre 1958, II8-1 1. 2 tant Clauses ofthe Bill ofLading (Thesis, University of X Malta M-SI

Malta 1964); Cremona, F., Notes on Commercial Chapter IX: Camilleri, F.G., The Concept of Domicile Partnerships (1967); Buttigieg, A Comparative Study in Private International Law in Malta (Thesis, Univer­ ofPartnership en nom collectifin Maltese, English and sity of Malta 1958); Mifsud Bonnid, Validity of Mar­ Italian Law (Thesis, University of Malta 1969); riage in Maltese Private International Law (Thesis, Montanaro Gauci, Evolution of the Institute of Broke­ University ofMalta 1958); Ciappara, A General Survey rage (Thesis, University of Malta 1958); Debono, of the Private International Law of Succession with Appunti di lezioni sui fallimento nel diritto Maltese Special Reference to Maltese Law (Thesis, University (1897); Galea Debono, The Flag of Convenience and of Malta 1958). Maltese Maritime Law (Thesis, University of Malta 1967). 2. Legislative Texts Chapter VI: Depasquale, A., Unfair Competition. A Chapter I: Constitution of Malta of 21 Sept. 1964. as Comparative Study Between Maltese, English and subsequently amended: Peaslee, Constitutions ill 571- Italian (Thesis, University of Malta 1969). 633·

Chapter VII: Depasquale, F., The Development of Chapter V: Foreign Tax Law Association (ed.), Com­ Trade Marks Legislation in Malta (Thesis, University mercial Laws of Malta (St. Petersburg, Fla. 1962 ss., of Malta 1964); White and Ravenscroft (ed.), Trade loose-leaf). Marks [Malta] 461-465; Manche, The Actions for Passing Off and for the Infringement of Registered 3. Periodicals Trade Marks in Maltese Law (Thesis, University of Malta 1958); Manual Industrial Prope~ty IT [Malta]. Malta Law Journal (since 1944, quarterly, now an­ nually). Chapter VIII: Said P111licino, The Civil Action wi?t Special Reference to the Element of Interest (Thesis, University of Malta 1961). (Completed in December 1972)