The Malta Independent 14 November 2018, Wednesday

The basics of the Maltese legal system

Noel Grima Monday, 13 April 2015, 14:08 Last update: about 5 years ago

The Maltese legal system is what is known as a mixed legal system.

To understand this, one must go back to the history of Maltese legal practice over the centuries.

Malta's legal system for many centuries was based on the Roman law as codified by the Emperor Justinian and as rediscovered and developed and practiced by the greater part of continental Europe.

With the coming of the Order of St John to Malta the predominance of the Roman law actually increased and strengthened. The 1784 Code de Rohan and maritime code of the Consolato del Mare adopted in 1697 adapted Roman law to the particular circumstances of Malta.

The French invasion in 1798 brought about a huge revolution in Maltese law and society but had very little time to establish its roots seeing that the Maltese soon rebelled against the French.

The British, who were invited in to help the war against the French, and then stayed on brought with them a very different legal system. At first, the British took care that the old Roman law remained the basic law as practiced in Malta reserving issues related to the safety and defence of Malta.

In time, however, the British introduced more and more legal institutions and principles such as trial by jury, the rules of evidence and the organisation of the courts itself.

In time, this hybrid legal system was broadened and deepened by laws promulgated by the Maltese parliament, especially after the 1964 Independence. The European Union Treaty then was transposed into Maltese law and is now the law of the country.

As Judge Giovanni Bonello said in this book's back cover, the Maltese legal system has never, so far, had the benefit of becoming the object of reflection and study in a comprehensive, encyclopaedic, let alone inter-disciplinary manner.

Professor David Attard has now come to the rescue and this book is the result. It takes non-lawyers, that is, the public at large gently by the hand and opens to them what used to be considered as a closed, mysterious, abstruse world.

Given the history and sources of the Maltese legal system, we may say it has its roots in the Civil Law (continental) family but which has absorbed many features of the Common Law (British) tradition. In other words, it is a mixed legal system. While the rules on theft in the Maltese Criminal Code are inspired by the Civil Law (continental) approach, the English law institution of the jury system has been grafted onto the Maltese Criminal Code. The Maltese legal system thus represents an early attempt to fuse together two great families of law.

Written Maltese Law may be divided in four main sub-divisions:

-          Civil Law and Criminal Law

-          Public Law and Private Law

-          Substantive Law and Procedural Law

-          Municipal Law and Public International Law.

Civil Law is concerned with the rights and obligations of persons towards one another and provides a system of remedies, such as damages or specific performances.

Criminal Law, on the other hand, is made up of rules of law concerned with acts or omissions which are contrary to public order and society as a whole, and prescribe punishment such as imprisonment or a fine.

Hence the distinction between civil and criminal wrongs does not lie in the nature of the offence, since the same act may be both a criminal offence and a civil wrong.

Public Law comprises mainly:

-          Constitutional Law;

-          Administrative Law; and

-          Criminal Law.

Private Law includes both Civil and Commercial Law, aiming to protect private interests.

This is the first volume of this comprehensive review of the Maltese legal system. The second volume, The Maltese Legal System: Constitution and Human Rights Law, including a review of Maltese Constitutional Law followed by an introduction to Maltese human rights law, will be published separately.

This first volume, as said, starts by providing in plain language a basic introduction to law and Maltese law in particular.

It then goes on to review in detail Maltese legislation and its interpretation, the legal profession, the organisation of the Courts and important aspects of the law on jurisdiction and extradition.

Fittingly, the book starts by discussing the nature of law and its function in a society, its meaning, nature and sub-classes.

Then it discusses the interplay between language and law. Clarity of expression is fundamental. In this regard, Maltese legal jargon has had a unique evolution. Up to 1933 the language of the Maltese courts was Italian and Italian influence is still present in Maltese legal jargon. The book also has a very interesting appendix by Joe Felice Pace listing and explaining Maltese legal jargon. It shows the overwhelming enduring influence of Italian in Maltese legal jargon.

Next, the book outlines the legislative process mainly through parliamentary procedure from White Paper stage to the drafting of a bill, then to first and second reading in the House, the committee stage and then the third and final reading of the bill leading to the President's assent, publication on the Government Gazette and being brought into force.

There is then delegated or subsidiary legislation, so called because Parliament itself delegates a person or a body with authority to make subsidiary legislation.

All this legislative structure comes under the rules laid down in the Interpretation Act which not only defines common words found throughout all laws but also establishes principles of legislative construction, that is, how are laws to be interpreted.

Judicial interpretation is that interpretation of the law given by the courts in the application of the law to particular facts before it.

The European Convention Act says that any law which is interpreted as conflicting with the Act is null and void.

And above these strata of laws, there is the Constitution, the supreme law of the state. If any legislation be inconsistent with the Constitution, the Constitution must prevail.

The book then explains the roles of the various players at Court, from lawyers, to members of the judiciary, to notaries, to the Commission for the Administration of Justice, judicial assistants and court referees, to the ministry, the Attorney General and the executive police.

Next, the book describes the organisation of the Courts, from the Civil Courts to the Superior Courts, the Constitutional Court, the Court of Appeal and the Legal Aid institution. Next comes the Criminal Court: not many know there are two different Court of Magistrates: the Court of Magistrates as a Court of Criminal Judicature and the Court of Magistrates as a Court of Criminal Inquiry, and finally the Jury system and the Court of Criminal Appeal.

Recent steps have led to the decentralisation of the court system through the creation of tribunals such as the Industrial Tribunal, the Rent Regulation Board, the Agricultural Leases Control Board, the Competition and Consumer Appeals Tribunal, the Small Claims Tribunal, the Administrative Review Tribunal, the Malta Arbitration Centre, the Environment and Planning Review Tribunal and the Ombudsman.

One looks forward to the second volume which deals with Constitutional and Human Rights Law.

 

 David Joseph Attard

The Maltese Legal System

Volume I

Malta University Press

445 pp

2012


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