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9

Malta
biagio andó, kevin aquilina, j. scerri-diacono
and david zammit*

I Founding of the system


Generalization I-1 The transfer of sovereignty
The origins of the Maltese mixed legal system – which result from the
interface between the continental legal tradition, which lies at the basis of
the Maltese legal tradition, with the English one – cannot be explained as
the outcome of a straightforward transfer of sovereignty directly from a
continental power to the British Empire. The period which has to be
considered most relevant for understanding the origins of British sover-
eignty runs from the end of French rule to 1815. What cannot be denied
is that, after the expulsion of the French as a result of a military alliance
between the Maltese insurgents and British military forces, the British
exercised de facto political control over the archipelago. Nevertheless, as
a matter of strict law, it would seem that formal sovereignty continued to
lie with the King of the Two Sicilies, given the British failure to restore
the islands to the rule of the Knights as they bound themselves to do by
the Treaty of Amiens. During this period Malta was effectively a British
protectorate. From the British perspective Malta lost the status of pro-
tectorate and became a colony only after October 5, 1813, when Thomas
Maitland took up the position of Governor and Commander of the
Island of Malta. In 1814, Article VII of the Treaty of Paris recognized
this change of status, providing that “the island of Malta with the
dependencies thereof will be under the Sovereignty of The King of
Great Britain.” From this point onward, the British started to administer
Malta as if it had been conquered.

* The authors divided responsibility for the answers as follows: Biagio Andó: §§I, IV, VII-c,
VIII-1, VIII-b,VIII-c, VIII-d, XI; Kevin Aquilina, §§II, III, VII-3, VII-d; J. Scerri-
Diacono, §V; David Zammit, §§VI, VII-1, VII-2, VII-a, VII-b, VIII-e, IX, X.

528
malta 529
While this historical transition clearly reflects an overall transfer of
sovereignty from a continental sovereign to the English, the precise legal
nature of this transition before 1814 and of the British title over Malta are
open to interpretation. It is also clear that from an early period the Maltese
political and legal élites contested the understanding that Malta had come
under British rule by way of conquest and instead claimed that the British
era started with a voluntary cession made by the Maltese people in favor of
the British Crown, after the jettisoning of French domination. The polit-
ical aim underlying this interpretation was that of obtaining for Malta a
privileged status within the British Empire different from that of an
ordinary colony, which would preserve the religion, laws, and customs
of the Maltese people and offer them a high degree of autonomy and self-
government, while allowing them to benefit from the commercial advan-
tages resulting from integration within the British Empire. This interpre-
tation, while not endorsed by the British authorities, did intersect with
their policy to placate the Maltese and ensure their allegiance, as man-
ifested in the Proclamation issued by Charles Cameron, the first Civil
Commissioner for Malta on July 15, 1801, which stated that: “His Majesty
grants you full protection and the enjoyment of all your dearest rights. He
will protect your Churches, your Holy Religion, your persons and your
property.” The genesis of the Maltese legal system as a mixed system thus
reflects the understanding, shared by both the Maltese elite and the British
authorities, that British rule over Malta would aim to preserve the
continuity of Maltese (i.e. continental) laws and customs.

Generalization I-2 Installation of new public law


This Generalization is partially true. The British Government oriented
public law and maritime law towards the English common law model.
Once Malta became de jure an English colony, the indigenous representative
institutions were dissolved. Malta came closer to the British court system
under the administration of the Governor, Thomas Maitland. The creation
of several courts styled on the British pattern dates back to Maitland’s
Minute of October 5, 1813. The most significant aspects of Maitland’s
reforms to the judicial system are: the creation of a Supreme Council of
Justice (with a majority of English judges); the transformation of the
Supreme Tribunal of Appeal into the High Court of Appeal; the replace-
ment of the ancient Criminal and Civil courts with new ones; the abolition
of Courts at Mdina and on the island of Gozo and the replacement of the old
Consolato del Mare with a new Commercial Court.
530 biagio andó et al .
The basic principles introduced by the British administration
included: the principle of the separation of powers; the introduction of
a viva voce public hearing to replace the previous written and secret court
proceedings; the abolition of torture; the introduction of trial by jury in
select cases; and the acknowledgment of fixed salaries and security of
tenure to judges aimed at guaranteeing their independence and solving
the problems of widespread corruption.
The Generalization is not correct as regards the statement that judges
and magistrates would be trained in the common law. In Malta, this did
not occur. To give one example, Maltese judges did not adopt the
common law style of drafting dissenting opinions.

Generalization I-3 Promulgation of laws in two languages


Yes. Nowadays, there are two official languages of law: Maltese and English.
With the Malta Constitution (amendment) Letters Patent of August 16,
1934, the Maltese language was acknowledged as one of the official
languages of Malta, together with English and Italian. In 1936, Maltese
became the official language of the courts. However, the Italian language
did not disappear once and for all from the gamut of official languages but
kept its status until 1939 when a new Constitution was enacted.
This status of Maltese as an official language is nowadays ruled by the
Constitution, Article 5 of which provides in paragraph 1 that: “the national
language of Malta is the Maltese language,” adding at paragraph 2 that “the
Maltese and the English languages and such other language as may be
prescribed by Parliament … shall be the official languages of Malta and
the Administration may for all official purposes use any of such languages.”
As a result of the official acknowledgment of Maltese as the national
language of Malta, if there is conflict between the two versions of a law,
the Maltese text will prevail (according to Section 74 of the Constitution).
The Maltese language gained legal status in Malta after the First World War
with Act XVI of 1929. This introduced the Maltese language into judicial
proceedings, allowing the parties the possibility to choose Maltese (but
Italian was not replaced). Act XVII of the same year introduced Maltese
into notarial deeds. As to English, it started gradually to gain ground in
Malta at the end of the 1870s, when the Keenan Report was published and
the Colonial authorities started to promote the teaching of English more
aggressively within the educational system. Afterwards, English was recog-
nized as an official language (jointly with Italian) in the Constitution of
1921, which granted self-government to the Maltese.
malta 531
In some cases, it is provided expressly in the text of the statute
implementing a directive or an international treaty that English is the
only language used.

Generalization I-4 Retention of private civil law


This Generalization holds true for the legal system of Malta. Private law
was retained, but this cannot be interpreted as solely the result of a
political concession or an incentive, but also as the outcome of pragmatic
calculations made by the British government. Some further explanations
are required. A Royal Commission was appointed in 1812 to enquire into
all matters touching the civil government. While the civil law provisions
of the Code de Rohan were considered to be substantially sound, judicial
procedure was heavily criticized and it was decided to intervene initially
in this field through Maitland’s reforms. Although it may well have been
considered advantageous to Imperial interests to follow up these reforms
by replacing private law based on Roman law with English common law,
the colonial authorities came to realize that this substitution would have
entailed considerable practical disadvantages. On the one hand, the
peculiarities of English private law would have made it difficult to trans-
plant into a foreign context; on the other hand, the indigenous private
law system based on continental law was well-tried, and a new one based
on common law would have been unfamiliar and therefore difficult to
implement. Moreover, and this was perhaps the crucial objection, they
faced entrenched opposition from the Maltese legal profession, which
objected to any such imposition.
The process by which a decision was reached to retain Maltese private
law is deeply intertwined with the process of codification of Maltese
law. Therefore, it is necessary to focus on the latter question. This issue
arose under the administration of the Governor Frederick Ponsonby
(1827–1836) regarding the policy to follow for the revision of the existing
laws.1 Difficult choices had to be made regarding the choice of the
individuals who would be given the task of codification. For Chief
Justice Stoddart, this process should have been driven only by English
jurists. This approach was strongly criticized by Governor Ponsonby,

1
H. I. Lee, “British Policy Towards the Religion, Ancient Laws and Custom in Malta,
1824–1851” 4 Melita Historica (Journal of the Malta Historical Society 1964), pp. 1–13.
532 biagio andó et al .
and a Commission was appointed which was composed of four English
and two Maltese jurists. The process of codification inevitably raised the
problem of the language to be used for codification. There were those
such as Stoddart, who strove for English as the language of codification,
whereas the Maltese judges and Ponsonby were favorable to Italian. The
language issue was important, because the choice of English as the
language of the codification would have made it possible to introduce
English rules and principles in the texts of the codes. Vigorous disagree-
ments erupted on this point, which made it impossible for the
Commission to complete its work. Moreover these disagreements
ended up pitting the British governor, Ponsonby, who held that the
revision of the existing laws was to be done according to the civil law
tradition and in the Italian language, against the British Chief Justice,
John Stoddart, who held that codes had to be drafted on the English
pattern and in the English language.
Eventually, the colonial authorities took the decision to uphold the
approach of the Governor and the Maltese jurists and decided that
the new codes would be drafted in the Italian language and modeled
on the most accredited codes of continental Europe. Sir John Stoddart
was dismissed and a new Commission was appointed to promote the
process of codification. This process was eventually consolidated by Sir
Adrian Dingli, who was appointed Crown Advocate in 1854. Dingli
drafted the civil code by enacting single ordinances in line with the
most modern civilian codes of that time.

Generalization I-5 Influence of political demands


Yes, the political demands for the acknowledgment of a status for
Malta different from that of an ordinary colony and the resistance
to Anglicization displayed by members of the legal profession and the
Church were a factor which exerted a significant influence on the British,
together with the British authorities’ awareness of the difficulties of
transplanting English private law within the Maltese legal system
referred to above, in relation to the decision to retain private civil law.

Generalization I-6 Retention of non-European personal


law systems
This Generalization does not apply to Malta due to the absence of
significant ethnic communities apart from the Maltese population.
malta 533

Question I-a Effect on commercial and procedural laws


In general, the pre-existing commercial and procedural laws were initially
retained, but were later subjected to considerable British influence. For full
details, see §§V and VI.

Question I-b Justification for retention of civil law


See Generalization I-1.

Question I-c Justification for retention of non-European


personal law systems
The question is inapplicable to Malta, since there are no distinct systems
of personal laws, nor any non-European personal law systems.

Question I-d Fear of disturbing land titles


This factor played an important role in the decision to retain civil law, as
it is shown in the first proclamation of a British Civil Commissioner
(Cameron) of July 15, 1801. This act informed the Maltese that the
British would respect the “dearest rights” of the Maltese. Among these
rights, those of church, persons, and property were expressly mentioned.

Question I-e Size and distribution of the population


According to E. Zammit, the Maltese population was about 100,000 in
the year 1820. See “Aspects of British Colonial Policies and Maltese
Patterns of Behavior” in Victor Mallia-Milanes (ed.), The British
Colonial Experience 1800–1964 (Mireva 1988), p. 166. This population
should not necessarily be regarded as “European,” as the question sug-
gests, for the ethnic origins were already very blended due to different
occupiers and immigrations of peoples, which included Phoenicians,
Italians, Sicilians, Arabs, Greeks, and French. Very few people, even
within the educated elite, spoke English during the first period of
English domination. This situation influenced the choice of Italian as
the language of codification (see above, Generalization I-4).

Question I-f Additional measures to entrench continental law


Yes. A good example can be found in the criminal code, which was
drafted on the basis of the Criminal Code of the Kingdom of the Two
534 biagio andó et al .
Sicilies, which itself had been based exclusively on Roman law. The
choice of Italian as the language of codification has to be considered as
a measure to entrench continental European law, since it was made in the
awareness that a continental model would be followed. The choice of
English in fact would have inevitably produced a departure from the
meaning attached to the technical words used in the codes.2

II The magistrates and the courts


Generalization II-1 Courts modeled on Anglo-Saxon prototype
The institution of the judge in Malta is essentially civilian. The powers of the
judge derive from the Code of Organization and Civil Procedure, in civil
matters, and from the Criminal Code, in criminal matters. Both laws are
inspired by the civil law tradition. The doctrine of precedent does not apply
to Malta, and the Code of Organization and Civil Procedure specifically
states, in Article 237, that judgments bind only the parties thereto and do not
bind third parties.3 However, if a court were to declare a law as contravening
the human rights provisions of the Constitution of Malta, or ultra vires the
European Convention of Human Rights and Fundamental Freedoms
(ECHR), that judgment still continues to bind the parties thereto, but the
Prime Minister may in terms of Article 242(2) of the Code of Organization
and Civil Procedure and Article 6A of the European Convention Act make
regulations to repeal the offending law. The judge operates within institu-
tional safeguards in the light of the doctrines of the separation of powers
enshrined in the Westminster type of Constitution which Malta has. The
independence of the judiciary is granted to them by this Constitution.
Courts do balance the other two organs of the state but the Constitution
remains supreme. Judges are not perceived as being law-creators but as law-
appliers. It is not the function of judges to create law within the Maltese legal
system. Hence the civil law tradition prevails in this respect.

Generalization II-2 Recruitment of judges


Judges are appointed, not elected, in Malta. Article 96(1) of the
Constitution of Malta provides that: “The judges of the Superior
2
For wider references on this issue, see H. Harding, Maltese Legal History under British
Rule (1801–1836) (Progress Publishers, 1968), pp. 311 ff.
3
The Code of Organization and Civil Procedure is available online in English at www.
justiceservices.gov.mt/lom.aspx?pageid+27&mode+chrono.
malta 535
Courts shall be appointed by the President acting in accordance with the
advice of the Prime Minister.” Hence, the President has to act on what
the Prime Minister advises him to do. According to Article 96(2), “A
person shall not be qualified to be appointed a judge of the Superior
Courts unless for a period of, or periods amounting in the aggregate to,
not less than twelve years he has either practiced as an advocate in Malta
or served as a magistrate in Malta, or has partly so practiced and partly so
served.” According to Article 100(2) of the Constitution, a magistrate
must have practiced “as an advocate in Malta for a period of, or periods
amounting in the aggregate to, not less than seven years.” So judges and
magistrates are selected from practising advocates. There is no judicial
college in Malta and judges and magistrates follow the same course as an
advocate does. Legal education is focused on producing advocates. Once
advocates have at least seven or twelve years of professional experience
they can be appointed magistrates and judges, respectively. In the cur-
riculum of an advocate, which is spread over six years of full-time
academic studies, civil law and common law subjects are studied.

Generalization II-3 Structure of courts


There are two sets of ordinary courts: courts of civil jurisdiction and
courts of criminal jurisdiction. Each set has its own hierarchy. Courts are
supplemented by quasi-judicial tribunals.
The courts of civil jurisdiction, in order of hierarchy, are the following:
1. Constitutional Court
2. Court of Appeal (superior jurisdiction and inferior jurisdiction)
3. Civil Court (Civil Court, First Hall; Civil Court, Family Jurisdiction;
Civil Court, Voluntary Jurisdiction)
4. Court of Magistrates.
There are no administrative and commercial courts in Malta; however,
administrative and commercial jurisdiction is exercised by the Civil Court,
First Hall, which deals with civil, commercial, and administrative cases.
Insofar as the courts of criminal jurisdiction are concerned, the hier-
archy is as follows:
1. Court of Criminal Appeal (superior jurisdiction or inferior jurisdiction)
2. Criminal Court (without or without a jury)
3. Court of Magistrates (as a Court of Criminal Judicature or a Court of
Inquiry) and the Juvenile Court.
536 biagio andó et al .
A number of judges and magistrates sit on both civil and criminal courts.
For example, the Chief Justice presides over the Constitutional Court,
the Court of Appeal, and the Court of Criminal Appeal. Judges can be
members of a number of civil and criminal courts at one and the same
time. The same applies to magistrates. The members of the judiciary
(judges and magistrates) are largely the same because they all sit on more
than one court at the same time.
The Constitutional Court is the highest court but its jurisdiction
is limited only to matters that are regulated by the Constitution of
Malta and the European Convention Act (the enactment which incor-
porates into Maltese Law the ECHR). Otherwise it is the Court of Appeal,
in its civil jurisdiction, which deals with other (non-constitutional)
public law issues such as administrative law matters. In Malta, there
are also a number of specialized quasi-judicial tribunals which deal with
various public law issues so that recourse is channeled to these tribunals
(rather than to the courts of civil jurisdiction); however it is normal for a
person aggrieved by a decision of such a tribunal to seek judicial review
of the decision before the Court of Appeal. Examples of such tribunals
include the Administrative Review Tribunal; the Environment and
Planning Review Tribunal; the Communications Appeals Board; the
Financial Services Tribunal.
No distinction exists between law and equity.

Generalization II-4 Unified judicial body


The two highest courts in Malta are the Constitutional Court and
the Court of Criminal Appeal. Both courts are made up of three
judges. The Chief Justice normally presides over both courts. Neither
the Constitutional Court nor the Court of Criminal Appeal (Superior
Jurisdiction) has chambers. This is due to the fact that they do not
receive a huge amount of cases per year, as is the position with the
Court of Appeal. Indeed, the Court of Appeal is split up into
chambers.
The Civil Court is presided over by one judge. The Court of
Magistrates is presided over by one magistrate. Neither the Civil Court
nor the Court of Magistrates has chambers.
Malta has only two levels of courts – it lacks a third level, that of a
Court of Cassation or Supreme Court. So the highest level is the second
level, the level of the Constitutional Court, the Court of Appeal, and the
Court of Criminal Appeal.
malta 537
The lower level is made up of the Civil Court, the Court of Magistrates,
and the Juvenile Court.
Then there is the European Court of Human Rights, which is a level
higher than the Constitutional Court, though the European Court of
Human Rights is a foreign not a national court. Above the Court of
Appeal there is also the Court of Justice of the European Union (CJEU),
formerly known as the European Court of Justice (ECJ).

Generalization II-5 Appellate review


Appellate courts have both the power to revise judgments from lower
courts and enter final orders, and to remand judgments back in the case
of lower tribunals. Insofar as the former are concerned, Appellate courts
(Constitutional Court, Court of Appeal, and Court of Criminal Appeal),
hear appeals from judgments from inferior courts (Civil Court, Court of
Magistrates, and Juvenile Court) and can revise the judgment without
sending the case back. Here the three Appellate courts act as Appellate
and not as reviewing courts. When the Court of Appeal acts as a reviewing
court, it is hearing appeals from quasi-judicial bodies – that is, from
tribunals and not from courts such as the Environment and Planning
Review Tribunal, the Communications Appeals Board, etc. In these cases
the Court of Appeal carries out a judicial review of these tribunals’ decisions
but does not enter a final decision – if the Court of Appeal disagrees with
the tribunal, it will quash the tribunal’s decision and remit the case back to
the said tribunal so that it would be the tribunal that would decide the case.

Generalization II-6 Style of opinions


Whilst the first two sentences are correct insofar as the Maltese
legal system is concerned, the third and fourth sentences are not.
This is because where the law allows a collegiate court
(Constitutional Court, Court of Appeal, and Court of Criminal
Appeal, all three courts consisting of three judges), the three judges
deliver but one opinion for the entire court. That opinion is consid-
ered to be the collegiate opinion of the court, even if one of the judges
might disagree with the majority opinion. The Maltese system does
not permit each judge to write his judgment or for a judge to express a
separate opinion in favor of the judgment or a dissenting opinion. One
judgment is delivered for the whole collegiate court with no dissenting
opinions being possible.
538 biagio andó et al .

Question II-a Legal profession


The legal profession in Malta is divided into three categories:
(1) the advocate;
(2) the legal procurator; and
(3) the notary public.
The judges can only be recruited from advocates (known also as “lawyers”).
An advocate has the right of audience before all courts of civil and criminal
jurisdiction. A legal procurator has a right of audience only before the courts
presided over by magistrates (but not before courts presided over by judges,
in which case he will have to engage an advocate to plead his client’s case).
The notary public is more like his continental counterpart.

Question II-b Changes in recruiting judges


No significant changes have been so introduced, apart from a recent
clarification to the effect that practice in Malta does not necessarily
include practice at the bar. This, however, is only a clarification which
does not change anything.

III Judicial methodology


Generalization III-1 Publication of case reports
From 2002 onwards all court judgments, whether of Appellate courts or
inferior courts, are published on the website of the Ministry responsible
for justice, at www.justiceservices.gov.mt. All judgments are published in
the language in which they are delivered (which is normally Maltese)
and, exceptionally, where one of the parties is an English language-
speaking person, in English. There are no translations made of judg-
ments from Maltese to English and vice versa. Nor are judgments
reported – that is, there is no official publication which provides a
summary of a judgment. The Maltese daily newspapers report some
judgments but these are few and far between, apart from being addressed
to the general public rather than the legal profession. The names of the
parties are sometimes removed, though the whole judgment is published,
to protect the identity of minors and victims. The legal community has
access to all these judgments even if the judgments are not organized by
subject-matter. There is, however, a free text search on the website.
malta 539

Generalization III-2 Debate over sources of law


Malta does not embrace the doctrine of stare decisis. Hence court judg-
ments have no binding effect except on the parties thereto. Although the
courts do quote case law in their judgments, these judgments have
persuasive effect only and sometimes the courts come up with conflicting
judgments and at other times change previous judgments. Hence,
although it can be stated that case law can provide a good evidence
of what the law is, it cannot be said that it is binding at law. Courts
are free to come up with different solutions to a case, depending on the
circumstances.

Generalization III-3 Jurisprudence not an official source


This statement is correct for Malta.

Generalization III-4 De facto source value of jurisprudence


This is a very valid statement. However, a court is always permitted
to depart from previous case law provided that it substantiates its
reasoning for doing so (e.g. a change in circumstances, the law might
have changed in the interim period, etc.). Assuming that a valid reason is
given to depart from accepted case law, then it should not be possible for
a court to deviate capriciously and without good reason from established
case law (for the case might also be that although there is case law, case
law has not really established what the applicable norm ought to be).

Generalization III-5 Binding effect on lower courts


Lower courts will take cognizance of the pronouncements of higher
courts and will try to apply them, but not de rigueur as the case might
arise where a lower court is not in agreement with a higher court. So,
although in practice lower courts will follow and apply the pronounce-
ments of higher courts, there may be those exceptional cases where this
might not be the case.
Insofar as the second sentence is concerned, this is correct but the
more authoritative and consistently applied a pronouncement of a
higher court is, the less the probability that a lower court will take
issue therewith even if such course of action is still possible in the
Maltese legal system.
540 biagio andó et al .

Generalization III-6 Case law and legal malpractice


This is not the case in Malta. Since there is no doctrine of precedent,
case law is never definitive. It can always be re-opened and re-evaluated
even by lower courts. There have been cases where the Appellate courts
themselves have reversed their own judgments. There have been no
reported cases of lawyers being found liable in tort for professional
malpractice.

Generalization III-7 Case law reasoning in judicial opinions


Normally Maltese courts tend to apply both techniques. As a rule, the
courts start off by referring to the text of the law and interpret it
themselves without recourse to any extrinsic aids to interpretation.
When the provision is clear and no case law or doctrine in point exists,
the courts will resort to their own rules of interpretation by applying
established canons of construction (ubi lex voluit dixit; ejusdem generis, etc.).
Where, however, there exists case law on the subject under review,
Maltese courts usually quote such case law, not because they are bound
by it, but because of its authoritative value which reinforces the ratio
decidendi of the judgment.
When there is no extant case law, then the courts will quote doctrine.
Sometimes, they even quote case law and doctrine together. By “doc-
trine,” we mean the published works of jurists.
When the law in question originates from the civil law tradition (e.g.
in the case of the Civil Code), then it is primarily Italian and French
authors who are quoted, although sometimes even Roman law and
authors on Roman law are quoted as well if the principle in question
dates back to Roman times. Sometimes even Canon law is quoted in
matrimonial cases.
Where the origin of the Maltese law is English public law (constitutional
law, administrative law, public international law, private international law,
etc.) then English books are normally quoted or books from common law
jurisdictions which have adopted English law.

Question III-a Practice of explicitly overruling precedents


When judges overrule their previously established precedents, they
explain why the previous judgment is no longer applicable today and
what changes have brought about the inapplicability of the precedent.
They might expressly declare the non-applicability of the old case but
malta 541
there is no legal requirement to that effect. The means by which case law
is declared obsolete lies in the discretion of the court.

Question III-b Reprimands to lower courts


There have been a few cases where higher courts have reprimanded
lower courts on the incorrect application or interpretation of legal
provisions such as, for example, when a suspended sentence of imprison-
ment is awarded by a lower court when such a sentence should not have
been so awarded.

Question III-c Judicial method(s)


Both methods are used concurrently in the same judgment, especially
with higher courts, who quote their own case law, case law of foreign and
international courts as well as authors and scholars, whether from civil
law or common law jurisdictions, depending very much on the legal
system in which the Maltese law has its origin.

IV Statutory interpretation
Generalization IV-1 Dual interpretative approaches
No. Statutory interpretation does not change depending on the nature of the
sources of the statute being interpreted. The instruments of interpretation in
Malta are always the same and are rooted in the civil background of the
judges. In the Maltese legal system, a fundamental distinction has to
be made between the authentic interpretation made by the legislature and
the doctrinal one, resulting from the operation of two criteria, the gram-
matical and the logical. The grammatical interpretation stresses the impor-
tance of looking at the meaning of the words used, while the second
criterion aims at discovering the will of the legislator in cases where the
use of the first criterion is not sufficient. According to the first criterion,
interpretation has to clarify the legislator’s intention at the time of the
enactment of the law. For this purpose, recourse is had to parliamentary
debates (and this reference is typical of civil law countries) and the law’s
historical precedents.4

4
Lex posterior ad priorem nisi contraria ait.
542 biagio andó et al .
There is also another case when the interpreter cannot stop at gram-
matical interpretation, that is when there are provisions in the same Act
or in the same field of law, whose meaning conflicts with the literal
meaning of the provision which has to be applied. In this case, a
preliminary survey of the Act or the branch of law in which the provision
is placed is necessary and the provision must be interpreted in a manner
that is coherent with the context in which it is placed.

Generalization IV-2 Civilian approach to equity


There is no general provision dedicated to equity as a norm-filling concept
in the Civil Code. However there are some references to it in specific
provisions which are worth citing. In this sense, Article 993 makes
recourse to equity as to the carrying out of contracts: “contracts must be
carried out in good faith, and shall be binding not only in regard to the
matter therein expressed, but also in regard to any consequence which by
equity, custom, or law is incidental to the obligation, according to its
nature.” The Code seems to make reference to the conception of equity
as a norm-filling concept in two other instances. These concern the right
of accession (Article 572(1)), as well as the determination of shares in the
partnership (Article 1667(1)). In the first case, the Code provides that “the
right of accession in regard to movable things belonging to several owners
shall be governed by the principles of natural equity”; in the second, it
provides that in the event that one of the partners has full power to
determine the shares of the others, “such decision may not be impeached
unless it is manifestly contrary to equity.” In this second case, equity can
be employed by a private individual, and not by a judge. In these cases
equity is a criterion whose function is to fill the gaps. There is also another
case in which equity is used as a gap-filling concept. The Small Claims
Tribunal Act makes reference to equity as a source of law which can be
used by the adjudicator. Article 7(1) of the Act provides that “the Tribunal
shall determine any claim or counter-claim before it principally in accord-
ance with equity.” The importance played by equity in this field can be
explained by two factors: (1) the small value of these claims; (2) the need
for faster decisions through a less complicated decision-making process,
which make it useful to give to the adjudicator wider powers than those
usually conferred on judges. Therefore, in Malta, a limited recourse is
made to the concept of equity in the Civil Code.
However, for a more accurate reconstruction of the role of equity refer-
ence has to be made to nineteenth century Maltese doctrinal writers who
malta 543
delved into this topic, such as P. de Bono5 and I. Bonavita.6 The latter,
writing on the topic of the evidence, observes that in the case of gaps in the
law judges have to make recourse to Maltese common law, to the principles
of the Maltese legal tradition, notwithstanding that the reforms on evidence
were molded on the English laws.7 This is consistent with a rule placed in
the code of Rohan quoted by de Bono as still in force. According to this rule,
when a case cannot be decided on the basis of local laws, regard has to be
had to common law. This means that judicial power in equity is strictly
linked in the thought of these scholars to the Maltese legal tradition, from
which judges may draw in order to fill gaps.

V Mercantile law
Generalization V-1 Adoption of Anglo-American law merchant
At birth, Maltese commercial law was clearly of Roman law stock.
Contained in a Commercial Law Code, Maltese commercial law initially
finds its source in the French Commercial Code of 1807 and is, therefore,
similar to the Italian Commercial Codes of 1865 and 1882. Some parts of the
Maltese Commercial Law Code were enacted during the First Maltese Self-
Government between 1921 and 1933 and are modeled on the Mallia
Commercial Law Draft Bill of 1927 which in turn was based on the Italian
Progetto Vivante prepared in Rome after the First World War.8
The Roman law basis of Maltese commercial law, and also its codified
form, were subjected to major changes in the latter half of the twentieth
century. At that time, the development and further expansion of Maltese
Commercial law was sourced in the common law tradition, particularly
but not exclusively from UK legislation. These changes gave rise to a
process of de-codification since, in the large majority of cases, new law
was developed outside the Code. This led to the somewhat awkward
position of having a Maltese Commercial Code that had shrunk in both
content and form, and on the other hand, far more commercial law
floating around outside the Code than forming an integral part of it.
5
P. de Bono, Sommario della Storia della Legislazione Maltese (Tipografia del Malta 1898).
6
I. Bonavita, Saggio sulla prova giudiziaria considerata in rapporto all’attuale legislazione
maltese (Tipografia Anglo-Maltese 1844) (2nd edn, 1849).
7
Bonavita argues that gaps can be filled by the recourse to English law only when and if the
Maltese law-maker expressly provides that in case of gaps recourse has to be made to
English law. If this does not happen, the Maltese common law would prevail.
8
J. A. Micallef, An Outline of Maltese Commercial Law (University of Malta Press, 1986),
Chapter 1.
544 biagio andó et al .
It was the Commercial Partnerships Ordinance (hereafter CPO) of 19629
that heralded a succession of major changes to Maltese commercial law
based upon the common law. The CPO dealt, inter alia, with companies, a
specialized branch of commercial law and the bloodline of modern com-
merce. The CPO, in fact, has been held to have played a crucial role in
Malta’s economic development.10 The Commercial Partnership Law
Reform Commission responsible for the drafting of the CPO stated in its
1956 Report11 that, insofar as companies were concerned, the law was to a
large extent based on English law.12 Faced with the choice of either further
developing the law on commercial partnerships in the Roman law tradition
as was originally laid out in the Code13 or, alternatively, developing the new
law modeled on a foreign law that did not form part of that tradition, the
Commission opted for the latter.14 Accordingly, the Commission recom-
mended to the Government a law that was, indicatively, to coexist with but
nevertheless remain outside the Code. In this sense, the CPO was not only a
landmark but also a forerunner of the movement that started to steer
Maltese commercial law clearly away from the Roman law tradition of
continental Europe and instead to introduce and even supplant legislation
with new law modeled on the common law and developed outside the Code.
Following in the tracks of the CPO, the Maltese legislator passed, in
1973, the Merchant Shipping Act, another specialized branch of com-
mercial law.15 In this case, the common law (English) influence is not

9
Chapter 168 of the Laws of Malta.
10
A. Muscat, Principles of Maltese Company Law (University of Malta Press 2007), p. 21.
11
The Report is reproduced in Professor Joseph A, Micallef’s Commercial Law – Cases &
Materials: The Enterprise Including Companies (publisher at proof 1985). The Report
was submitted by the Commission to Government in February 1956.
12
The UK Companies Act 1948. It may be noted, however, that questions of dissolution and
liquidation of companies were left to be patterned upon continental Roman law models that
were considered to be simpler and more adapted to the local scene at that time.
13
Muscat, Principles of Maltese Company Law, p. 7.
14
Although the Report of the Commissioners does not state this, Professor J. M. Ganado
states, in “Malta: A Microcosm of International Influences” in E. Orucu, E. Attwooll, and
S. Coyle, Studies in Legal Systems. Mixed and Mixing (Kluwer 1996), p. 20, www.
jmganado.com/publications, that this choice was made in light of Malta’s “close con-
nection” with the United Kingdom, thus rendering English company law the “most
appropriate model to adopt.”
15
Chapter 234 of the Laws of Malta. Professor Felice Cremona remarks that maritime law
is substantially a branch of commercial law inasmuch as it is based on the same
fundamental principles: it should nevertheless be considered a lex speciale since it is
destined to govern legal relationships of a special nature. Felice Cremona, Notes on
Maltese Maritime Law (Part I) (George Schembri (ed.) 1974), p. 2, (based on Professor
Carlo Mallia’s original Notes in the Italian Language).
malta 545
sudden and unexpected since it follows from a process that had com-
menced as early as the mid nineteenth century. This injection of new
legislation continued in the same vein as the CPO, bringing Maltese
commercial law closer to the common law, and abrogating at the
same time parts of the Commercial Code and increasing the laws outside
the Code.16 This process gained momentum in later years following
the promulgation of a multitude of Acts of Parliament that dealt with a
variety of commercial law topics that concerned, amongst other things,
the financial services sector, which includes banking,17 insurance, invest-
ment services law, and related areas, such as trusts. Taken altogether, this
more recently enacted legislation, univocally founded in the common
law tradition, takes up a substantial part of Maltese commercial law.
Meanwhile, the CPO was also repealed and supplanted with the
Companies Act 1995, removing those aspects of companies law that
had remained, in the CPO, based on Roman law, bringing this area of
law squarely and neatly within the common law family.18 As a result,
developments in Maltese company law are now married to developments
in the United Kingdom. It has been said that English company law
has formed the backbone of Maltese company law for almost half a
century, instilling in the process a forma mentis amongst Maltese
professionals and law-makers that is ingrained in English company law
concepts.19

16
The introduction of English-style merchant shipping legislation is quite relevant to this
discussion because through this law we see foreign, common law concepts and institutes,
such as the lien and the mortgage, being introduced into the Maltese legal framework.
For an explanation of which parts of the Commercial Code were abrogated upon the
enactment of English law-based merchant shipping legislation, see Cremona, Notes on
Maltese Maritime Law, p. 6.
17
The regulatory side of banking law is heavily influenced by English law statutes and
more recently by EU Banking Directives. The private side of banking law has in recent
times gradually become more common law in nature, albeit traditionally the courts
relied on Italian legal doctrine and banking practices. J. M. Ganado explains that because
the Anglo-Egyptian bank (later Barclays Bank) was for over a century a major player
in the local banking scene, English law and practice started making, in time, inroads into
the banking scene in Malta, exerting greater influence, to the extent that when disputes
arose English banking law and practice started to be relied on. Ganado, “Malta: A
Microcosm,” p. 21.
18
However, we now start to see EU influences coming through, and it is generally felt that
in commercial law the EU influence will start to overshadow the prior trend toward
common law sources.
19
Muscat, Principles of Maltese Company Law, p. 57.
546 biagio andó et al .

Generalization V-2 The process of reception


The process of receiving the common law is a phenomenon that started
with Malta’s involvement with Britain at the start of the nineteenth
century. However, the injection of common law-sourced commercial
law into the Maltese legal system only really started to take place in
earnest in the second half of the twentieth century.20 Prior to that time,
the introduction of common law-inspired legislation into the commer-
cial sphere was sporadic and few and far between: A number of the
exceptional cases related to maritime law, an area in which Malta has a
long unbroken chain of common law-inspired enactments starting as
early as the mid nineteenth century, thus making the bulk of Maltese
maritime law very much a Common Law lookalike.21
During the start of the second half of the twentieth century the
introduction of common law-sourced legislation for matters concerning
commercial law accelerated but, nevertheless, may be characterized as a
somewhat tepid reception. All this was to change in later years, to the
extent that the legislator’s rule of thumb is now to have recourse to
common law sources whenever the need arises for an upgrade of Maltese
commercial law. The reasons why this very clear choice has been made
by the legislator will be explained below.

Question V-a Mode of reception of commercial law


The reception of common law-based commercial law into the Maltese
scene was, initially, clearly legislatively driven, carried out after deliber-
ate if not clinical choices made between the two legal families. Common
law-based commercial law has, typically, been received into the Maltese
legal system following legislative projects subcontracted to local experts
who would then make recommendations to Government.

20
Ganado, “Malta: A Microcosm,” p. 8.
21
Admiralty procedure (concerning the arrest of ships in Malta), began to be regulated in
Malta as early as 1890 under the Colonial Courts of Admiralty Act of 1890. This
legislation incorporated into the Maltese legal scene English law procedures and notions
that were, until that time, alien to Maltese law. Felice Cremona mentions other com-
mercial (maritime) legislation of UK origin relative to merchant shipping that applied to
Malta from the early start of Malta’s involvement with Britain. Cremona, Notes on
Maltese Maritime Law, p. 6. See also Ganado, “Malta: A Microcosm,” p. 9, who high-
lights the subtopics of maritime law that partake from English sources, namely marine
insurance and salvage. The Carriage of Goods By Sea Act 1952, is also modeled on
English law.
malta 547
The success of any newly introduced law will depend on its reception
by the industry, the legal practitioners, and also the courts. The local
practitioners and those sectors in society impacted by the new common
law-driven commercial law have generally received such legislation
positively.22 Maltese courts have been equally receptive. The courts
have willingly interpreted and applied this legislation and, in the process,
have often acknowledged the common law source of the law and have
used this source to justify their reference to common law judgments and
authoritative text-writers when rendering judgment. This has now
become the trend particularly in the company, maritime, insurance,
and banking law fields. In this sense, it has been said that the courts,
legal profession, and University have become ambidextrous: capable of
handling and even merging both legal systems to operate as a coherent
whole.23
The judiciary’s accommodating reception of Maltese commercial law
partaking of a common law source has undoubtedly been conducive to a
consistent and clear development of the law, also allowing those who
work with the law (legal advisors, authorities, etc.) to benefit from the
wealth of the common law. The judiciary’s willing reception has, there-
fore, served to create a high degree of certainty and predictability and
this, in turn, is today one of the Maltese legal system’s strengths that
makes Malta an attractive jurisdiction in the shipping and financial
services worlds.
Hence, insofar as Maltese commercial law is concerned, whilst the
injection of common law concepts, traditions, and institutes was pre-
dominantly driven by the legislator, the courts in Malta to a large degree
facilitated the assimilation and ensured its success.

Question V-b Stated justification and rationales


Malta set out to establish itself as a center of excellence in the interna-
tional shipping, financial services, and (in 2010) the aviation sectors.
Hence, the areas of commercial law that received paramount attention

22
The CPO serves as an illustration of this point. It has been said this was very well
received at the time by both businessmen and local practitioners. See Muscat, Principles
of Maltese Company Law, p. 12, quoting Michael Camilleri, The Commercial
Partnerships Ordinance, 1962 and the Companies Act 1995 – A History 1954–2000
(LLD thesis, University of Malta 2003).
23
Max Ganado (ed.), Introduction to Maltese Financial Services Law (Allied Publications
2009), p. 14.
548 biagio andó et al .
over the last few decades were those related directly or indirectly to these
sectors. The Maltese legislator’s rationale for his selection of common
law as the preferred source of law serving as a model for those areas of
law that required revisiting is simple to understand. The legislation
applicable to the various sectors of commercial law served as the touch-
stone on which the success of those projects rested. With respect to
shipping, English law merchant shipping legislation was already familiar
to Malta24 but also presented an internationally well-established, pro-
creditor model that made it the natural choice for the legislator at
the time.
With regard to the legislation concerning financial services, the choice
was not difficult, considering that London is an acclaimed financial
center in ways that Rome was not. Generally speaking, in the commercial
world, the success of the common law is attributed to the fact that the
common law as a system of law tends to favor creditors as opposed to
debtors whereas the Roman law systems tend to favor debtors. Apart
from this, systems of law founded in the Roman law tradition are
generally formalistic and require registration of transactions, generally
prefer transparency, and favor certainty even if this reduces choices and
options. These systems generally require recourse to the courts in order
to obtain remedies, abhorring self-help by the creditor. In the common
law, the courts are not as central to the enforcement of rights by creditors
who, instead, are given strong self-help powers. The common law does
not generally rely on formality and is more flexible when compared with
its counterpart. It does not generally require registration of transactions
and does not have limitations on what can and cannot be done contrac-
tually, as long as it is expressed clearly and not prohibited.25 It has been
said that the pro-creditor bias is probably the key element that has most
supported the development of the financial center in England and the
United States and, inversely, the pro-debtor bias in Romanist systems
has resulted in severe limitations, retarding somewhat the development
of the financial industry on the Continent.

Question V-c Pressure emanating from within or without


In the maritime field, common law influence, specifically English law,
came soon after Malta’s involvement with Britain. There was pressure

24
Cremona, “Notes on Maltese Maritime Law,” pp. 6 ff.
25
Ganado (ed.), Introduction to Maltese Financial Services, p. 11.
malta 549
from the British on Malta to adopt English-based legislation: this insist-
ence resulted from the British feeling that it was advisable for Malta, as
one of the main ports of call of the British Empire, to follow English law
and practice in maritime matters.26 As for the rest, pressures to change
the law came from within the country following political decisions taken
to upgrade Malta’s laws in order to generate or encourage business
activity. This very often translates into pressure on legal drafters to
adopt models that are attractive to the players (particularly the finan-
ciers) in the industry to which those models apply in order to ensure
success.

Question V-d Vestiges of the predecessor system


The various, more specialized, English law-inspired statutes sit side by
side with the somewhat undeveloped, shrunken Commercial Code, a
Code which nevertheless continues to play an important role in com-
mercial transactions. The Code contains very relevant law on commer-
cial obligations, which are based on Roman law and permeate
throughout the commercial law fields. Moreover, contract and security
law remain regulated by the Roman law-based Civil Code, with the result
that issues relating to loans, pledges, hypothecs, set-offs or payments are
regulated by civil law provisions or principles, and in such matters
English principles would have very little if any relevance.27 The end
result is, therefore, a sophisticated hybrid of the merged two families
operating as one consistent legal system.28

VI Procedure and evidence


Generalization VI-1 Disappearance of civil law procedure
This Generalization only applies to Malta with heavy qualifications.
Whilst trial procedure and evidence are largely adversarial, civil law
procedure cannot be said to have disappeared in toto soon after the
transfer of sovereignty. It is true that, starting from 1813, the effective
date on which his governorship began, the first British Governor of
Malta, Thomas Maitland, issued a series of Proclamations which restruc-
tured the constitution and jurisdiction of the various courts. The

26
Ganado, “Malta: A Microcosm,” p. 9. 27 Ibid., p. 21.
28
Ganado (ed.), Introduction to Maltese Financial Services, p. 14, mirrors this view.
550 biagio andó et al .
Proclamations introduced the principles of judicial independence, a
public, adversarial and viva voce trial, the oral questioning of witnesses
in open court, and the limited use of a lay jury in certain criminal trials.
However it should be observed that in other aspects civil law procedure
and some inquisitorial trial practices have survived.
The continued influence of civil law procedure in Malta can be clearly
evidenced in the following instances:
(1) Most of the rules of the Code of Organization and Civil Procedure
have a civilian origin.
(2) In criminal trials, there is the revealing role played by the inquiring
magistrate who gathers evidence in the pre-trial phase in the case of
offenses whose punishment exceeds a ten-year term of imprisonment.
This magistrate, like his French counterpart, has wide-ranging powers
to summon and question witnesses.29 The magistrate presides over the
court of criminal inquiry, which does not have any adjudicative func-
tion but simply investigates and gathers the evidence. The matter is
then sent to the Attorney-General for his decision as to whether to issue
a bill of indictment or not for trial before the Criminal Court, which
often involves a jury.
(3) In ordinary civil trials there is no jury and usually no single continuous
oral hearing. Trials are discontinuous because numerous adjournments
and deferrals of the hearing are usually granted, and it is normal for
such a civil trial to take years to be concluded.30 Thus the trial in such
cases is episodic in character. During a particular sitting one of the
witnesses may be examined, or a document presented. As a conse-
quence there is little adversarial “courtroom drama” and the focus of
the parties lies more on the written case-file than on the oral hearing.
There is no discovery system, the rules of evidence are little utilized and
certain judges do not limit themselves to the passive role of referees.
Instead they assume an active role in the questioning of witnesses and
the overall direction of the proceedings. Furthermore, there is a

29
Article 397 of the Criminal Code states: “The court may order the attendance of any
witness and the production of any evidence which it may deem necessary, as well as the
issue of any summons or warrant of arrest against any other principal or accomplice
whom the court may discover. The court may likewise order any inquest, search,
experiment or any other thing necessary for the fullest investigation of the case.”
30
Government statistics for 2010 show that 39 percent of the cases pending before the Civil
Court (First Hall) had been pending for more than four years (see “Published Age
Analysis”, available at: www.justiceservices.gov.mt/courtservices/Statistics/civil.aspx?
year=2010.
malta 551
tendency to rely upon written reports produced by court-appointed
experts to assess any technical evidence produced, and there is a rule
prohibiting witnesses from being questioned in the presence of other
witnesses in the same case.31

Question VI-a Mode of reception


The adoption of common law procedure and evidence was brought
about primarily by statute. The early Proclamations issued by British
Civil Commissioners and Governors in Malta were called Bandi to con-
form to local practice, but their legal nature was that of a Proclamation.32
The Criminal Code was promulgated by means of an Order-in-Council
and the Code of Organization and Civil Procedure was enacted by means
of an Ordinance. After 1948, Acts of the Maltese Parliament were
utilized to amend this legislation. Rules of Court have recently been
issued both under the Criminal Code and the Code of Organization
and Civil Procedure.33

Question VI-b Vestiges of inquisitorial system


As mentioned in §VI-1, there are noticeable vestiges of the inquisitorial
system in both the law and in the practice of the courts. Most of these
inquisitorial features are found in civil trials, with the exception of the
pre-trial role of the inquiring magistrate in criminal law. This can be

31
A seasoned practitioner’s description of proceedings in civil trials in Malta lends
support to the statements made in the text: “All other judges [in civil trials] have, in
recent years, been following what I have come to call ‘the butterfly pattern’ moving
from one case to another, along very long lists of cases, registering very little progress
every time (episodic). It is correct to say that the attention of the parties’ lawyers (and
the Court’s) remains focused on the written case file; the oral hearing is just a means of
collecting evidence, as is the submission of affidavits … It is also true that requests are
made by the parties for the Court to appoint its own independent expert, which
removes an important element of the adversarial system in that the role of the court
referee is predominantly investigative, especially where technical or medical findings
are concerned.” Private communication to the author from Dr. Tonio Azzopardi,
April 20, 2011.
32
See the discussion of the definition of Bandi in Barry Hough and Howard Davis, Coleridge’s
Laws: A Study of Coleridge in Malta (OpenBook Publishers 2010), pp. 52–154.
33
As to the Criminal Code, see The Court Practice and Procedure and Good Order
(Criminal Code) Rules of Court – Legal Notice 280/2008. As to the Code of
Organization and Civil Procedure, see The Court Practice and Procedure and Good
Order Rules – Legal Notice 279/2008.
552 biagio andó et al .
explained in part by the fact that the jury system is the norm in trials
before the Criminal Court, but has never been introduced in civil cases.
In turn, the jury system has meant that the principle of a single contin-
uous hearing was adhered to in criminal trials, given the impracticality of
dissolving a jury once summoned in order to postpone the continuance
of the hearing to another date. By contrast, it is the norm in civil cases to
have an “episodic” trial, marked by a number of hearings, with each
session generally separated from each other by a three-month gap, and
the overall “trial” lasting for at least three years. (It is reportedly rare to
have a sitting in which more than one witness is examined or one
document presented.) This has preserved other features of inquisitorial
trial procedure such as the greater importance of the written case-file in
respect of the oral court proceedings, the reduced level of “courtroom
drama” and the prominent role of the judge. The judge controls the
timing of the hearing, by deciding which case out of several scheduled to
be heard in a particular sitting will in fact be heard, and deciding whether
to grant an adjournment or not. Moreover as the same judge decides
both the legal and the factual aspects of the case, lawyers tend to be
conservative in making objections to testimony under the rules of evi-
dence, and would not usually object if certain judges intervened to
examine witnesses themselves.
The enduring influence of inquisitorial procedure has also to be
understood in the light of specific historical developments in Malta as
a British colony in the nineteenth century. Whilst during his long
governorship (1813–1824) Sir Thomas Maitland seems to have intended
to completely replace the prevailing inquisitorial with common law
procedure, his death marked a watershed, after which his successors in
office did not pursue this project with the same commitment. In 1839, Sir
Antonio Micallef, later Attorney-General and President of the Court of
Appeal, wrote that although the introduction in 1814 of various proce-
dural reforms had filled men of goodwill with high expectations, the
death of their principal author had extinguished all their hopes. A series
of badly formulated and contradictory laws had followed which created
various inconveniences and disorders until at the time of writing all that
was left of Maitland’s beneficial reforms was the sad memory.34
The reasons for the lack of commitment shown by the British author-
ities for consolidating Maitland’s procedural reforms appear to be closely

34
See A. Micallef, Trattato delle procedure civil nel foro di Malta (University of Malta Press
1986), p. v.
malta 553
connected to the reversal in the 1830s of the previous thorough-going
Anglicizing agenda and its replacement by a policy that local law would
be left intact in areas where the introduction of common law principles
was not felt to be absolutely necessary. This policy shift was reflected in
the appointment in 1834 of a Commission composed exclusively of
Maltese jurists in order to draft the five new law codes35 and also in
the instructions to this Commission that the new codes were to be
drafted in the Italian language and modeled on the most accredited
foreign (i.e. civilian) codes. It was also reflected in the dismissal, in
1839, of the English Chief Justice, Sir John Stoddart, who had agitated
too aggressively in favor of the introduction of the English language, the
extension of jury trials, and resort to common law instead of civil law as
the basis of the new Criminal Code. Through this policy shift the colonial
government hoped to avoid antagonizing the local legal profession.
Precisely in this period following the dismissal of Stoddart, two dis-
tinguished Maltese jurists, Judge Ignazio Bonavita and Dr. Antonio
Micallef, published three separate commentaries on Maltese procedural
law and the law of proof and evidence.36 These commentaries are written
in Italian and they treat Maltese civil procedure as a seamless mixture of
rules drawn from Canon law, the Sicilian (procedural) rite, and common
law, but having their foundation firmly in Roman law. When writing
specifically about Maltese law on proof and evidence, Justice Bonavita
referred to common law authorities on the grounds that this area of
Maltese law was mainly derived from English law. However he also made
clear that these rules of common law origin must also coexist with other
procedural rules, the proper interpretation of which requires an under-
standing of both Roman and Canon law. These commentaries clearly
provided a template for the Code of Organization and Civil Procedure,
promulgated in 1854, which was drafted by Antonio Micallef in a
manner which incorporated all these sources. The hybrid character of
Maltese civil procedure was confirmed in 1897 by Judge Paolo De Bono,
who stated that the form of the trial mainly follows Canon law whereas
common law rules determine matters of proof and evidence.37 Thus after

35
These were the Criminal Code, the Code of Criminal Procedure, the Civil Code, the
Code of Organization and Civil Procedure, and the Commercial Code.
36
Micallef, Trattato delle procedure civili; Ignazio Bonavita, Raccolta delle leggi di proce-
dura delle Corti superiori Ordinarie di Malta pubblicate dal 1814 al 1840 come sono
attualmente in vigore (Tipografia Anglo-Maltese 1841); Bonavita, Saggio sulla prova
giudiziaria.
37
See de Bono, Sommario della Storia della Legislazione in Malta, p. 322.
554 biagio andó et al .
a century of British rule, Maltese civil procedure was understood to
combine inquisitorial and adversarial features.
Various other amendments to the Code of Civil Procedure and the
civil trial were made in the twentieth century. In particular, one should
note the amendments made by Ordinance XV of 1913, following the
report of the Mowatt Commission,38 which allowed the plaintiff and the
defendant to give testimony in their own cases. Act XXIV of 1995 also
introduced far-reaching changes to the civil trial, particularly the intro-
duction of a pre-trial hearing aimed at clarifying the facts in dispute and
more widespread use of affidavits for purposes of presenting testimony.
There was also an abortive attempt in the mid-1990s, spearheaded by the
judiciary, to introduce the common law post of the Master and to
appoint one of their number to this role to ensure better case manage-
ment in pending cases. Insofar as these measures were mainly inspired
by common law models, it is clear that the adversarial features of the
system were reinforced, at least on paper. However, a big divide persists
between the criminal trial, largely employing an adversarial procedure,
and the civil trial, which still has a strong civilian basis.

Question VI-c Impact of common law procedure on civil law


substance
There has been little direct impact of common law procedure on civil law
substance, which is understandable as civilian procedure largely sur-
vived. There are at least two ways in which this impact can be indirectly
traced:
(1) A tendency to interpret civil law rules with a common law mentality
which deduces the applicable right from the available remedy,
ignoring the ubi jus ibi remedium principle. Such a tendency can
be observed in the restrictive interpretation given to Articles 1031
and 1033 of the Civil Code, which contain the Maltese equivalent of
the French general clause on responsibility in tort (see answer to
Question VII-a).
(2) A restrictive approach to the attempt to apply human rights horizon-
tally in the private law field. Maltese courts have been very conservative
in this regard and this conservatism can be traced directly to their

38
See Report of the Royal Commission on the Finances, Economic Position, and Judicial
Procedure of Malta (London 1912).
malta 555
reluctance to allow human rights, insofar as they are rules of Maltese
public law, to impact on private law.39 This reluctance in turn can be
seen to derive from the doctrinal separation developed by Maltese
judges and jurists between private law based on civil law and public
law based on common law (see Generalization IX-1).

VII Judicial reception of common law


Generalization VII-1 Civil law areas affected by reception
This Generalization holds true for the Maltese experience, insofar as tort
has been the most affected area of civil law. Some impact on contract law
has been noticeable; but the impact of common law on quasi-contract,
property, and successions has been negligible.

Generalization VII-2 Official justifications for receiving


common law
As a rule, judges have tended to justify reference to common law rules on the
grounds that the same rule exists either in Roman law or in other civilian
jurisdictions. This may not be stated expressly, as a Latin quotation such as
volenti non fit iniuria often serves the purpose of affirming such continuity.
In some cases, as in Butler v. Heard, 22 December 1967 (Count of Appeal)
(see below), the courts have justified the importation of common law rules
for the assessment of future loss of earnings on the grounds that whereas the
civil law was silent on the point, common law could provide a convenient
rule. Subsequent decisions have tended to apply the approach developed in
Butler v. Heard on the grounds that the courts were obliged to accept the
common law rules as they had been accepted in the previous decision.

Generalization VII-3 Infusion of constitutional values into the


private law
Undoubtedly this is a very true statement for Malta. With the influence
of human rights law on private law, various provisions of the Civil Code

39
Thus former Maltese Chief Justice, Joseph Said Pullicino, observed: “The ordinary courts –
other than those having a constitutional jurisdiction – and other judicial or quasi-judicial
bodies, do not seem to be directly concerned with human rights issues.” J. Said Pullicino,
“The Ombudsman: His Role in Human Rights Protection and Promotion” in David Zammit
(ed.), Maltese Perspectives on Human Rights (Dormax Press 2009), p. 123.
556 biagio andó et al .
and of Maltese private law have had to be amended to upgrade private
law to these new constitutional values. We find instances of these new
values adopted in the Civil Code, such as removing the distinction
between legitimate and illegitimate children and declaring spouses
equal in marriage.

Question VII-a Notable imports in tort


The impact of the common law on Maltese tort law did not lead to the
introduction of the nominate torts. The Maltese courts continue to impose
delictual or quasi-delictual liability depending on whether the following
general requirements are met: (1) an act or omission; (2) culpa or dolus; (3)
breach of a legally imposed duty, an “unjust act,” or an abuse of a right;
(4) causation and (5) damage. Instead, the influence of the common law has
made itself felt in three main areas. These are, firstly, the definition of
negligence in terms of a breach of a duty of care; secondly, the influence
of common law understandings of causation; and finally, and most clearly,
the assessment of the compensable damages.
As regards the definition of negligence, it can be pointed out that there
are some cases where the Maltese courts have treated common law texts
on negligence as guides to the interpretation of the element of culpa.
Here the concept of breach of a duty of care or that of a duty to care is
invoked. Usually, however, this is done loosely to indicate a general
criterion of liability for foreseeable harm and not in the technical sense
adopted by common law courts.40 The same holds for the element of
causation, where common law judgments are often quoted in order to
illuminate the requirement that the damage caused be a direct and
immediate consequence of the act or omission of the defendant.
The main impact of the common law on Maltese tort law has been felt
in regard to the quantification of damages, and this can be seen in the
restrictive attitude of the courts to the heads of recoverable damages,
despite the wording of Articles 1031 and 1033 of the Code, which appear
to create a responsibility to compensate all the damage caused. Instead
the courts have limited compensation to only those heads of compen-
sable damages which are specifically listed in Article 1045 of the Civil
Code, i.e. “the actual loss which the act shall have directly caused to the
injured party, the expenses which the latter may have been compelled to

40
See for example A.T.G. Company Ltd v. HSBC Bank Malta plc, Civil Court (First Hall),
September 29, 2009.
malta 557
incur in consequence of the damage, the loss of actual wages or other
earnings, and the loss of future earnings arising from any permanent
incapacity, total or partial, which the act may have caused.”
This typically common law focus on the available remedies instead of
the rights they are meant to safeguard was reinforced by the Court of
Appeal in the 1967 case of Butler v. Heard, when the court imported the
multiplier/multiplicand formula for determining loss of earnings from
common law and then adapted it for the purpose of determining the
plaintiff’s “loss of future earnings arising from any permanent incapac-
ity” under Article 1045. This multiplier/multiplicand method was
followed in practically all later tort cases over the next forty years or so
until the present day. While this may give the impression that the English
system was followed to the letter, it is important to note that the system
was modified in many ways by the Maltese courts. In particular, they
used the formula to compensate future loss of earnings even when no
loss of income had actually occurred until the date of the judgment; thus
using the multiplier/multiplicand method to compensate for loss of
ability to work in the abstract. This is not the approach adopted by
English case law. It is thus clear that the multiplier/multiplicand system,
while imported from common law, has itself been mixed with civil
law concepts which have given the Maltese courts a discretion to vary
the amount of damages payable for lucrum cessans according to their
subjective assessment of the extent to which the injury has impacted on
the victim’s ability to earn an income in the abstract.

Question VII-b Specific tort doctrines


Specific tort doctrines which have been imported from English common law
include the principle of res ipsa loquitur, referred to in various judgments,
and also many of the defenses common in English law. In particular, the
defense of volenti non fit injuria is understood and applied in almost
precisely the same way as the English courts do and reference is often
made by the Maltese courts to common law texts such as Charlesworth on
Negligence in order to interpret this defense. A provision regarding contrib-
utory negligence was specifically inserted into the Maltese Civil Code when
it was first drafted in 1868 and was originally modeled on Austrian law, so
that the courts had to reduce the damages payable to the victim by half in
cases where (1) the victim had contributed or given occasion to the damage
through his imprudence, negligence, or want of attention, (2) it cannot be
determined to what proportion the victim had so contributed, and (3) the
558 biagio andó et al .
defendant had acted involuntarily. This was amended in 1938 and Article
1051 of the Civil Code now gives the court discretion to reduce the damages
payable to the victim in proportion to the extent that he or she has
negligently contributed to the damage suffered. It is thus clear that the
doctrine of contributory negligence in Malta has always been viewed in the
civilian way and has not been influenced by the traditional common law
stance that it is a defense.

Question VII-c Notable imports in contract


It can be said that in private law the doctrines mentioned in the Question
have not been introduced in Maltese law. As to the doctrine of estoppel,
that does not mean that in the Maltese legal systems there is lack of
different rules that deserve the same aim of protection, in situations
where a strict application of statutory provisions and contractual terms
could lead to an unfair result. Reference can be made to the judicial
development of pre-contractual liability, or to the legal provisions ruling
quasi-contracts. However, some influences of English law are perceivable
in specific contracts, such as the contract of insurance.

Question VII-d Examples of the constitutionalization of


private law
Apart from the examples mentioned in §VII-3, Maltese law has been
influenced by judgments of the Constitutional Court and the European
Court of Human Rights insofar as adequate compensation is given in
requisitioned and expropriated private property by the state; in privacy
cases and in discrimination cases.

VIII Emergence of new legal creations


Generalization VIII-1 Creative convergence of legal traditions

Question VIII-a Notable creations


Yes. The trust (cf. Question VIII-c) is a good example. Other instances can
be found in the field of tort law. As to the latter, the criteria for the assess-
ment of damages for lucrum cessans have been received from English case
law (in particular, Maltese courts often refer to the seminal 1967 judgment
malta 559
of Butler v. Heard. Others instances of mixing can be found in the Criminal
Code and in the Code of Organization and Judicial Procedure, where the
influences of the civilian tradition on the one hand, and that of English
common law on the other, can be found side by side within the same text.
Reference is made to the other sections of this Report relating to the
influence of common law on trusts, tort law, and procedure.

Question VIII-b Forced heirship and free testation


No. The Maltese Civil Code provides some mandatory rules as to forced
heirship in favor of the spouse of the de cuius and the descendants (see
Articles 615–630 of the Maltese Civil Code). The principle of total freedom
of testation has not been received in the Maltese legal system since Malta is
one of those systems applying strict principles of forced heirship. In this
regard, the Civil Code acknowledges the right to a reserved portion of the
inheritance “in favour of the descendants and the surviving spouse of the
deceased,” and the action of abatement against those testamentary disposi-
tions which undermine the right to the reserved portion.

Question VIII-c The trust


Nowadays the trust is part of the Maltese legal landscape. Maltese law
started during the 1980s to acknowledge specific features of trusts, with-
out however providing any general introduction of it. This was in line
with the objective of involving international players within the Maltese
economy. This partial reception was based on the Jersey trust model as
distinct from the English one.41
With time, the Maltese trust shifted towards the English model.
Article 3(1) of the Trusts and Trustees Act, amended in 2004, provides
that “a trust exists where a person (called a trustee) holds, as owner or
has vested in him property under an obligation to deal with that property
for the benefit of persons (called the beneficiaries).” This provision
marks a clear difference from the Jersey trust which was the former
model for Maltese trust law and which does not acknowledge the trustee
to be in the position of owner.42

41
The Offshore Trusts Act provided that the settlor and the beneficiaries ought not to be
residents in Malta, and the fund ought not to include properties situated in Malta.
42
Section 2 of Trusts (Jersey) Law 1984 provides that “a trust exists where a person (known
as a trustee) holds or has vested in the person or is deemed to hold or have vested in the
person property (of which the person is not the owner in the person’s own right).”
560 biagio andó et al .
Although Maltese law, similar to English law, acknowledges the
trustee as owner, it does not follow the English dichotomy between
legal ownership (concerning trustees) and equitable ownership (con-
cerning beneficiaries). Beneficiaries are protected through the medium
of fiduciary obligations. Section 1124B of the Civil Code, Subsection (2),
provides that “when a person holds property subject to fiduciary obliga-
tions such property is not subject to the claims or rights of action of his
personal creditors, nor of his spouse or heirs at law.”
Maltese trusts have been adapted by the legislator to the Maltese basic
legal principles through Section 6A of the Trusts and Trustees Act. This
latter states that mandatory rules governing some areas of private law
(such as, for example, the protection of minors or incapable parties,
personal and proprietary effects of marriage, succession rights, testate
and intestate), prevail over the divergent provisions of a specific trust,
without however making it void.

Question VIII-d Detrimental reliance and causa


Maltese law wholeheartedly accepts the doctrine of “causa” but it has not
received the doctrine of promissory estoppel.

Question VIII-e Interaction of customary and “personal law”


rules with civil or common law
When the Maltese Civil Code was first enacted, various institutes that
were part of Maltese customary law were codified. Amongst these one
could mention the right of legal and contractual redemption and dowry.
Professor Paolo de Bono was of the opinion that the right of legal
redemption may well have originated from the Islamic right of Shuf’a
and would therefore have entered Maltese customary law during the
period of Arab domination (AD870–1090). The socjeta’ conjugale
was the old Maltese system regulating patrimonial relations between
spouses. Of unknown origin, this customary institution laid down that
one-third of the property acquired during the marriage belonged to the
father, one-third to the mother, and one-third to the children. It was,
however, not codified in the Civil Code and as a consequence appears to
have died out.
Until the enactment of the Marriage Act in 1975, there was no
legislation regulating civil marriages in Malta and according to custom
the law regulating such marriages was held to be the Canon law of the
malta 561
Roman Catholic Church. In cases where religious marriages were cele-
brated in Malta between non-Catholics, the validity of these marriages
was generally upheld by the courts. Where mixed marriages were cele-
brated in which one of the parties was a Roman Catholic and such
marriages did not comply with Canon law, the Maltese courts would
refuse to consider such marriages as valid on the grounds that they went
against public policy. This created a conflict with the decisions of foreign
courts. The Marriage Act resolved this problem by providing that the law
regulating the formal validity of a marriage is the lex loci celebrationis.
Maltese civil law also permits Catholics to be governed by a distinct
regime of “personal law” in the case of marriage. In 1995 the Marriage
Act was further amended to provide that: “a judgment of the
Ecclesiastical Tribunal on the validity or otherwise of a marriage can
be registered in Malta through an application to the Court of Appeal and,
if so registered it will have the full effect of a res judicata,”43 even in the
civil forum. An application to annul a marriage made before an
Ecclesiastical Tribunal is legally considered to mean that the local
courts lose their jurisdiction to decide on an application for civil
annulment of that marriage even if a civil court action was previously
pending.
Maltese civil law recognizes custom as a source of law and it expressly
provides that: “customary clauses shall be deemed to be included in a
contract, even though they are not expressed.”44 An example of a judg-
ment applying these principles is that of Victor Bonavia v. Cesarin
Borg,45 in which the Court of Appeal found that there existed a rule of
customary law that the purchase price of the airspace above a building is
also considered to comprise payment for the installation of rafters in the
roof of the storey beneath this airspace, so as to permit construction in
the airspace transferred. The Commercial Code goes a step further in
recognizing custom. Article 3 of this code provides that, in commercial
matters, the commercial law shall apply, but where no provision is made
in such law, then “the usages of trade or, in the absence of such usages,
the civil law shall apply.” This provision makes the enforcement of the
Civil Code rules secondary to the application of customary usages of
trade. One field where Article 3 has been applied has been in relation to
the charging of compound interest by banks in relation to overdraft loan

43
Ganado “Malta: A Microcosm,” p. 235.
44
Article 1007, Civil Code, Chapter 16, Laws of Malta.
45
Decided by the Inferior Court of Appeal on March 15, 1994.
562 biagio andó et al .
facilities which exceeded the 8 percent upper limit for interest on a loan
permitted by the Civil Code. By and large the courts have allowed the
charging of such compound interest on the grounds that banking prac-
tice in this commercial field constitutes a usage of trade overriding the
prohibition found in the Civil Code.46

IX Purists, pollutionists, and pragmatists


Generalization IX-1 Existence of three juristic personalities
While it is certainly possible to group Maltese jurists into the three
categories of “purists,” “pollutionists,” and “pragmatists,” it should be
observed that the relative proportions of the members of each of these
categories varied in different historical periods and during different
stages of the careers of particular jurists. By and large the pragmatists
have historically dominated the field, and for a number of reasons.
Firstly, it should be observed that the paucity of legislation enacted
by the French during their two years of rule over Malta and the
fact that they were besieged in Valletta battling a popular Maltese
insurrection during much of this period, meant that there could be
little sense of nostalgic identification with French law on the part of
Maltese jurists.47
Secondly, at the start of British rule, Maltese legislation was domi-
nated by the Diritto Municipale di Malta, also known as the Code De
Rohan, which was a redaction of Maltese legislation promulgated in
1784, during the final years of the rule of the Knights. This text, which
continued to be the main source of Maltese legislation until 1854,48
contained rules deriving from various sources, including statutes enacted
by the Knights, Canon law, Roman law, rules imported from foreign
legislative sources, and local custom. It clearly stated that “Whenever a
dispute cannot be decided by the provisions of the Municipal law, regard

46
See, for example, Mid Med Bank Ltd v. Teg Industries Ltd, decided by the Civil Court
(First Hall) on November 29, 2001.
47
Thus the Court of Appeal in an 1885 decision in the case of Nobile Giuseppe dei Marchesi
De Piro v. Monsignor Don Salvatore Grech Delicata held that, as a matter of principle, the
civil acts of the French interlude were null and void. This judgment was recently quoted
by Dr. Albert Ganado in a letter to the Times of Malta of November 7, 2010 concerning
“The Legality of Malta’s Cession to France.” It can be found online at www.timesofmalta.
com/articles/view/20101107/letters/legality-of-malta-s-cession-to-france-1.
48
That is until the promulgation of the Criminal Code, the Code of Criminal Procedure,
and the Code of Organization and Civil Procedure.
malta 563
must be had to the Common law.”49 When the Maltese Codes were
promulgated, many of their provisions were taken from the Code De
Rohan. Thus Maltese jurists could not be fully “purists” as they were
defending a system which was already mixed and partly of autocthonous
origin. Generally, in fact, they based their defense of Maltese law on the
grounds that it was really the Roman law which was applied in Malta,
thus on the one hand invoking a source whose authority had to be
respected by the British and on the other concealing the melange of
civilian sources by referring to their point of origin.
Thirdly, British colonial strategy tended to reconcile Maltese jurists to
the mixed nature of their legal system as, with the exception of the
periods from 1813 to 1824 and the period from the suspension of
the Constitution in 1933 until the end of the Second World War in
1945, the introduction of common law rules and principles occurred
gradually and indirectly and only in those areas where the colonial
authorities had a pressing commercial or political interest in so doing.
Thus the British government: (1) accepted for more than a century the
use of Italian as the official language in Malta; (2) in 1834 accepted that
the new Law Codes would be based on civilian and not common law
principles;50 and (3) focused most of its attention on procedural not
substantive reforms. This indirect approach and the fact that some of the
most talented Maltese lawyers were given employment by the British
Government either as Attorney-Generals or as judges, lessened “purist”
resistance and tended to convert purists into pragmatists, at least until
the Language Question became more pressing in the late nineteenth and
early twentieth centuries.
Fourthly, the Maltese courts developed their own understanding of
the relationship between the civilian and common law elements of the
Maltese legal system, which encouraged a stable pragmatic endorsement

49
The opinion of Judge Paolo Debono in the leading case of Marquis James Cassar Desain
v. James Louis Forbes, CBE, nominee, January 7, 1935 (Court of Appeal) was that since
this precept had never been repealed, it still applied. He added that: “The common law to
which the Code refers, is less that which is derived from the Corpus Juris than that which
was modified by the Canon law as expounded by the writers and accepted by usage in the
Courts.”
50
Lee notes: “Ponsonby then recommended that the Maltese judges assisted by three
Maltese advocates should be commissioned to draw up Civil and Commercial Codes
and a Code of Civil Procedure, which were to be based on the principles and rules of the
most approved Codes of foreign countries and with Italian as the authoritative text. Such
a Commission was issued in November 1834.” See Lee, “British Policy Towards the
Religion, Ancient Laws and Customs,” p. 4.
564 biagio andó et al .
of both aspects on the part of local jurists, while simultaneously keeping
the field of operation of civilian rules separate and distinct from that of
common law rules and frowning upon any encroachment by common
law rules on the field reserved for the civil law. This approach unites an
overall pragmatic approach with a purist respect for the distinctiveness
of the Civilian tradition. It found expression in the Court of Appeal’s
judgment in Cassar Desain v. Forbes, January 7, 1935, which invoked the
civilian distinction between private and public law to claim that Maltese
public law was based on English common law, while private law was the
field of operation of civilian rules.
As explained in §IX-2, over the past two centuries a few purist jurists
started to emerge in two historical periods: from 1814 to 1834 and from
1880 to 1939. After the Second World War the radical pro-Italian party
was discredited and although some purists remained, the shift from
Italian as the official language of legislation and the courts to Maltese
and English, coupled with the fact that English became the language of
legal education at the University, meant that Maltese jurists since then
have tended to be pragmatists and increasingly pollutionists.

Generalization IX-2 Civil law orientation of purists


This Generalization holds broadly true for Maltese purists from the
1940s until the present day, as these generally have a civil law orientation
and sometimes have a correspondingly pro-Italian or continental
cultural orientation, too. Purist jurists first started to emerge in the
period running from Maitland’s reforms to the courts, particularly
Proclamation XV of 1814, which appear to have provoked considerable
antagonism from the Maltese legal profession,51 until 1834 when the
British abandoned the project of outright Anglicization of Maltese
law and suspended the law reform Commission which they had
appointed in 1831.52

51
Harding cites Maitland’s despatch to Colonel Bunbury, the Under-Secretary of State,
dated May 15, 1814, in which he observed that: “The objections of the Maltese judges
and lawyers were numerous but certainly extremely frivolous generally – the real
objection they had to them being stated in two words i.e. that they were adverse to
any change of any kind.” See Harding, Maltese Legal History, p. 127.
52
This Commission’s work had been marred by disagreements between the Maltese and
the British members, particularly on the issue of whether Italian or English was to be the
language of the new Criminal Code.
malta 565
Purists also started to emerge in the period which started in 1878, with
the publication of the Keenan Report (see Question X-a). This provoked an
immediate political response, with the foundation in 1880 of the Anti-
Reformist political party, by Dr. Fortunato Mizzi, a prominent lawyer and
President of the Chamber of Advocates. This party was dedicated to
opposing any reforms intending to Anglicize the educational or judicial
system and is the forerunner of the Nationalist party, currently in
Government. This heralded a different kind of “purist” resistance, which
was less focused on solely defending civilian law from the intrusion of
common law principles and became a broad nationalist political movement,
aimed primarily at defending Malta’s culturally Italian character in educa-
tion, religion, and law, whilst professing political allegiance to the British
Government. While many of the supporters of this new movement were
lawyers, they are better characterized as politicians than as jurists.53
Nevertheless the general atmosphere of political resistance to defend
Malta’s Italian culture which prevailed amongst the legal profession after
1880 and which reached a climax in the 1930s, meant that Maltese jurists
adopted an increasingly purist orientation, in a few cases amounting to a
total rejection not only of common law influence upon fields originally
reserved for civil law, but of the legitimacy of British rule altogether.
As explained in §IX-1, purists in the early nineteenth century tended
to mount a conservative defense of the Maltese laws and legal system on
the grounds that this was the indigenous version of the Roman law which
had been applied from antiquity onwards. The focus by jurists on Malta’s
Italian cultural identity increased from the late nineteenth century until
the 1930s, following the unification of Italy and the emergence of the
Language Question. In the 1930s a few purists were in favor of the total
elimination of common law rules from the Maltese legal system as they
wanted to unite Malta, viewed as terra irridenta, with Italy.

Generalization IX-3 Common law orientation of pollutionists


Maltese jurists active in the public law and commercial law fields tend to
have a strong common law orientation and sometimes have a corre-
spondingly pro-English cultural orientation. Whilst there is resistance

53
Examples would include Dr. Enrico Mizzi, another lawyer and the son of Dr. Fortunato
Mizzi, who founded the Partito Democratico Nazzjonalista in 1921, and Dr. Herbert
Ganado, a lawyer, journalist, and politician who founded the Partit Demokratiku
Nazzjonalista.
566 biagio andó et al .
on the part of many Maltese jurists to the attempt to introduce or justify
common law encroachments in the core areas of civilian private law, the
dominance of the pragmatic approach means that accusations of
“pollution” or “contamination” are rarely made.

Generalization IX-4 Dual orientation of pragmatists


This Generalization holds true for Malta. Most jurists would claim that
the beauty of the Maltese system as a whole lies in the way it reflects the
best features of the common law and civil law worlds. However, by and
large, Maltese pragmatists are not enthusiastic proponents of “blending”
common law and civil law rules within the framework of the same
institute and they generally prefer to see the system, in the words of
Maltese law Professor Joseph Ganado, as “composed of a number of
clearly distinguished compartments.”54

Question IX-a Jurists and their writings


One Maltese jurist who can be regarded as having been of a clear purist
persuasion is Dr. Carlo Mallia, who was appointed Professor of
Commercial law at the University of Malta in 1920 and Minister of
Justice in 1932. In 1926, as a Member of Parliament, he drafted and
presented a bill entitled “Un Codice di Commercio per l’isola di Malta e le
sue dipendenze,” which was instrumental to the reform of Maltese
commercial law along continental lines.
As previously explained, most other Maltese jurists have been simulta-
neously pragmatists, insofar as they accepted the mixed character of the
Maltese system as a whole and purists insofar as they resisted the encroach-
ment of common law rules upon the private law field which was seen as
reserved for the civil law. Thus Sir Arturo Mercieca (1878–1969), who was
Chief Justice from 1924 to 1940, was the author of an autobiography Le mie
vicende, published in 1964 and also in 1954 of a biographical article about
Sir Adrian Dingli, the drafter of Malta’s Civil Code: “Sir Adriano Dingli:
Sommo Statista, Legislatore, Magistrato,” published in Melita Historica:
Journal of the Malta Historical Society (1954), pp. 164–184. In this article,
Sir Adrian (1817–1900) is praised for his fidelity to Maltese traditions as
manifested in the way he took Roman law and continental European
legislation as his model when drafting the Civil Code. In the same breath

54
Ganado, “Malta: A Microcosm.”
malta 567
he is also praised for having followed liberal English traditions and intro-
duced the jury system in regard to criminal procedure. This shows a certain
pragmatism on the part of both Sir Arturo Mercieca and Sir Adrian Dingli.
The Appunti, or annotations, published by Dingli are also a valuable
reference that illustrates the wide range of civilian sources he utilized
when drafting the Civil Code, including Roman law, the Code Napoleon,
the Austrian Code, and the codes of various Italian states. As already
evidenced (see Question VI-b), the books written by Sir Antonio Micallef
(1810–1889) and Sir Ignazio Bonavita (1792–1865) also clearly evidence a
pragmatic approach. Similarly, Judge Paolo de Bono in his Sommario Della
Storia Della Legislazione in Malta of 1897, praises the Code of Organization
and Civil Procedure for having been influenced by certain common law
rules and combining them with rules of civilian origin. This pragmatic
orientation can also be discerned in the notes in English on Maltese civil
law prepared by Professor Victor Caruana Galizia (1898–1968), and on
criminal law by Professor Sir Anthony Mamo (1909–2008). Roman and
civil law Professor Joseph M. Ganado (b. 1920), one of whose publications
was quoted in §IX-4, also epitomized this approach in his lectures and
publications.
Maltese jurists who were on the pollutionist end of the pragmatist
spectrum and have a common law orientation would include Professors
Felice Cremona (1905–1980) and J. J. Cremona (b. 1918), principal
drafters of the Commercial Partnerships Ordinance (1962) and the
Malta Independence Constitution (1964), respectively, both of which
are almost wholly based on common law principles. As an example of
this stance, one could also refer to Professor J. J. Cremona’s article on
the Maltese jury system, which he opens by pointing out how successful
the attempt to graft a typically English law institution like the jury system
on a Roman law stock had been in Malta. See J. J. Cremona, “The Jury
System in Malta” in 13 Am. J. Comp. Law (1964). Similarly, Commercial
Law Professor Andrew Muscat’s book Principles of Maltese Company
Law (University of Malta Press 2007) has a dominant common law
focus, as does Ganado’s edited book An Introduction to Maltese
Financial Services Law (Malta: Progress Press 2009).

Question IX-b Additional categories


Reference is made to what was said above in §§IX-1 and IX-4 and in
Question IX-a with reference to the fact that while most Maltese jurists
had a generally pragmatic attitude to the interaction between civil law
568 biagio andó et al .
and common law principles in the system as a whole, they also tended to
be purist insofar as they resisted the intrusion of common law rules and
principles into the field of civil law.

Question IX-c Linkage to cultural identity


A relationship between a critic’s legal stance, his or her cultural identity,
and his or her broader political affiliations can often be drawn. In the first
decades of British rule Mr. Justice Bonavita’s readiness to explore the
mixture of common law and civilian principles which constitute Maltese
civil procedure was also related to the fact that he was the only member
of the Maltese judiciary who knew English and that he had collaborated
intensively with Sir John Richardson, an eminent English lawyer, in
researching and reforming Maltese legislation, being indeed accused of
excessive collaboration with the British Governor by the Maltese liberals.
By contrast, a “pragmatic purist” like Sir Adrian Dingli started his career
as a cultural nationalist, keen to defend the Italian language and legal
heritage. He adopted a more moderate and pragmatic stance as he grew
older and was given important posts in the colonial administration and
judiciary, coming to be seen as de facto Governor of the island. That he
saw himself as a kind of mediator between the Maltese nationalists and
the Colonial Government is illustrated by the advice he gave not to
persevere in a policy of confrontation as regards the Language
Question, but rather to allow the replacement of Italian by English to
occur naturally. His contemporary Sir Antonio Micallef’s career was
similarly characterized by high state office as Attorney-General and as
Chief Justice and his legal stance was also moderate and accepting of a
certain common law influence in defined areas. Paolo de Bono, who was
appointed as a University professor and a judge by the British author-
ities, also falls within this “pragmatic purist” category, as clearly man-
ifested by the dedication of his book on the history of Maltese legislation
to Sir Adrian Dingli.
As the Language Question developed in the late nineteenth and early
twentieth centuries, the stances adopted by both the British authorities and
the Maltese nationalists grew more rigid. In this context suspicion fell on Sir
Arturo Mercieca, whose stance seems to have resembled that of Sir Adrian
Dingli insofar as he saw himself as culturally Italian but was ready to accept
the legal influence of the common law in defined fields and who had been
appointed firstly as Crown Counsel and latterly as Chief Justice by the
Colonial authorities. When in 1934 the British replaced Italian by Maltese
malta 569
as the language of the courts, Sir Arturo had been instrumental in resisting
this imposition by encouraging the injection of an Italianate vocabulary into
the version of Maltese used in court. On the outbreak of the Second World
War, he was compelled to resign his post and was then interned in Uganda
for the duration of the war, together with other Maltese who were seen as
too pro-Italian. Similarly, Professor Carlo Mallia, a purist, saw himself as an
Italian who happened to live in a territory which had not yet been
“redeemed” by the motherland. He was the leader of the Maltese fascists
and was dismissed from his professorship for that reason just before the
start of the Second World War. As a result, he left Malta for Rome, where he
became a Member of Parliament and from where he directed fascist prop-
aganda at Malta.
After 1945 a more pragmatic approach prevailed and jurists like Sir
Anthony Mamo, who was the first President of the Republic of Malta and
widely respected for his impartial approach, defined themselves as cul-
turally Maltese and were prepared to draw upon both common law and
civil law sources in order to develop Maltese law. At the same time,
pollutionists became more common. These tended to define themselves
as pro-British Maltese and were often close to or politically active within
the pro-British Constitutional Party or the Labour Party. Pollutionist
jurists were rarely associated with the Nationalist Party.

Question IX-d Periods of decline and renaissance


Maltese legal history is usually introduced to first-year Maltese law students
in the context of the teaching of Roman law. Here the overarching narrative
is one which emphasises the continuity of the Roman law tradition from
antiquity to the present within the Maltese islands. The British Colonial
period is generally remembered by purists as a time when Malta’s civilian
identity and legal heritage were under threat and when the legal profession
worked to resist this threat. It is generally agreed, however, that the civilian
heritage was further diluted following Independence in 1964.55

55
For example Dr. Ugo Mifsud Bonnici, a lawyer and former Nationalist politician,
Minister and former President of the Republic, who is the son of a former Nationalist
lawyer who was Minister of Education in the 1930s, stated in a interview conducted on
October 31, 2010 with the Times of Malta: “Don’t speak to me about following the
British example. We resisted English dominance for a long time; then, when we were on
the brink of independence, we embraced them completely and removed many of our
own traditions, as well as all remaining traces of continental influence.” See www.
timesofmalta.com/articles/view/20101031/education/a-true-scholar-and-politician.
570 biagio andó et al .
A more nuanced schematization can be gleaned from an article by
Professor Joseph Ganado,56 who divides up Maltese legal history into the
following periods:
(1) An early period before the arrival of the Knights of Saint John, when
Roman law prevailed.
(2) The period between 1530 and 1798, when the Knights enacted
legislation for Malta which had the hallmark of European influence.
(3) The French interregnum of 1798–1800, considered as unimportant
from the point of view of legislation.
(4) The early British period from 1800 until the dismissal of Sir John
Stoddart in 1839, characterized by a welcome reorganization of the
courts and of procedural law on the one hand and by constitutional
difficulties and confrontation with the Maltese legal profession on
the other.
(5) The period running roughly from 1839 to 1900, when the Maltese
Codes were drafted. This period is described as a renaissance from
the perspective of civilian law. At the same time from the mid
nineteenth century until the early twentieth century, knowledge of
English became more widespread and the courts became more
receptive to considering English law for comparative purposes.
(6) From the early 1900s onwards the courts start to apply private
international law principles as accepted by the English courts, with
the exception of principles relating to validity of marriages and
divorces.
(7) The mid 1930s is the period of transition from civilian to common
law influence. The language of the laws and the courts is changed.
English becomes the language of legal education and the practice of
Maltese law graduates carrying out postgraduate studies in Italian
universities is replaced by a practice of going to English universities.
(8) From the 1940s onwards a huge amount of legislation is enacted
following existing UK statutes and those of other Commonwealth
countries. Private law continues to be “based on the continental
pattern,” while public law, broadly defined, follows English law
principles. Reforms to judicial procedure are inspired by the com-
mon law model.
From 2004 onwards, it is clear that the Maltese legal system is being
heavily influenced by EU law, such that the three major legal systems

56
Ganado, “Malta: A Microcosm.”
malta 571
prevalent in Malta are the civil law, the common law, and the newly
introduced EU law. As at 2010, it can be safely stated that the civil law
influences are declining and that the common law has in many respects
taken over. However the influence of EU law is on the rise and one
cannot belittle the influence which EU law will have on the development
of the Maltese legal system in the years to come, possibly also to the
detriment of common law influences. As things stand, common law has
started its decline whilst EU law has started its ascension. All things
being equal, EU law might end up having the upper hand and common
law and civil law being relegated to an inferior status.

X The linguistic factor


Generalization X-1 Mixed jurisdiction in a unilingual society
This Generalization does not apply to Malta primarily because the society is
bilingual and the Maltese language, which has a substantial number of
Italian-origin words, continues to be in daily use by the vast majority of
Maltese. Furthermore the Maltese language is used together with English as
the official language of legislation and is the sole official language of
jurisprudence. Nor is it correct to say that only a few are literate in Italian,
the continental European language which was the official language at the
time of transfer of sovereignty. On the other hand, English has indeed
become the sole official language of juristic writings and original civilian
sources are usually consulted in their translated versions. Moreover, in the
case of the Civil Code, which by 1874 had been promulgated in the form of
two Italian-language Ordinances,57 their consolidation into a single Civil
Code occurred as late as 1942, when the two Ordinances, translated into a
Maltese and an English version, became Books I and II of the Civil Code.
Moreover a judgment delivered by the Court of Appeal in 1974 established
that the English text was to prevail in case of any doubt or conflict for all
legislation enacted before independence in 1964, while the Maltese text was
the authoritative language for amendments made after Independence.58

57
Ordinance VII of 1868 and Ordinance I of 1873.
58
See Giovanni Bonello’s essay, “The Maltese Civil Code: A Brief Historical Introduction”
in Giovanni Bonello, Histories of Malta: Reflections and Rejections 5 (Fondazzjoni
Patrimonju Publishing Malti 2004), p. 196. On p. 197, however, Bonello observes that:
“In subsequent cases, however, the Courts do not seem to have always stuck rationally to
this doctrine.”
572 biagio andó et al .

Generalization X-2 Mixed jurisdiction in a bilingual society


Malta is a bilingual society where Maltese is the national language and
where Maltese and English both have equal status as official languages
used by the administration. All laws are enacted in both languages. If
there is a conflict between the Maltese and English versions, the
Constitution provides in Article 74 that the Maltese text shall prevail.
This notwithstanding, specific enactments such as the Electronic
Commerce Act (Chapter 426, Laws of Malta) or the Data Protection
Act (Chapter 440, Laws of Malta), provide that in case of conflict the
English text of the law shall prevail. It is accepted that these more specific
provisions will supersede the more generic scope of Article 74 of the
Constitution.59 The Constitution also provides that the language of the
courts shall be Maltese, although proceedings may be conducted in
English in certain cases. Since 1934, Maltese has been the language of
jurisprudence and notarial deeds. It is also the language in which parlia-
mentary debates are conducted. This notwithstanding, law teaching at
the University is in English and juristic writings (with the exception of
published jurisprudence) are primarily in English.
From the 1950s to the present, the proportion of the population and of
the legal profession which is literate in Italian, the continental language
that prevailed in the administration and in the law courts when British
rule commenced, has been substantially lower than that which is literate
in English. Nevertheless it would be going too far to say that the original
civilian sources are “inaccessible,” although the law codes which were
originally promulgated in Italian have all been translated into English.
This is because: (1) Italian continues to be widely known and spoken in
Malta and (2) Maltese legal jargon is replete with Italian words and
expressions, the meaning of which has been preserved intact for
posterity.

Question X-a Linguistic classification of jurisdiction


While Maltese society is officially and de facto bilingual, neither of the
two official languages is the original continental European language of
legislation (i.e. Italian). As the population is quite ethnically homoge-
nous, the majority speaks both of the official languages (English and

59
See Phoebus Athanassiou, “The Application of Multilingualism in the European Union
Context” (2006), papers.ssrn.com/sol3/papers.cfm?abstract_id=886048.
malta 573
Maltese), with frequent code-switching between them. However, knowl-
edge of Italian is quite widespread and it constitutes the third most
widely spoken language on the island.60 Maltese legal jargon, specifically
the dialect of Maltese used in the courts, has borrowed many words from
the Italian language and formed new words or expressions on an
Italianate pattern, resulting in the creation of a dialect of Maltese
which is “practically alien to what is spoken by the man in the street.”61
The reasons for this situation are historical. When Malta became a
British colony in the early nineteenth century, the official language of the
administration, the laws, and the courts was Italian. This was, however,
only spoken by a small educated elite and its use was supplemented by
Maltese which was at the time an oral dialect widely spoken on the island
and which is of Semitic origin, being based on Arabic with many
Romance loan words. In 1834, following a disagreement on this point
between the Maltese judges and the English chief justice Sir John
Stoddart, the British Government abandoned the idea that the author-
itative text of the new law codes being drafted for Malta would be in
English and from then until 1921 used only Italian as the official langu-
age of administration, legislation, and the courts. This notwithstanding,
the Government’s plans to replace Italian by Maltese and English as the
languages of education and administration, which crystallized with the
publication of the Keenan Report in 1878, generated intense political
resistance, particularly from the legal profession. This led to the
“Language Question,” which was to dominate Maltese politics until the
Second World War and which produced the Nationalist political party,
dedicated to preserving the Italian language and culture in Malta and in
turn opposed by local Anglophile and pro-imperialist parties.
Another by-product of the Language Question was that Maltese,
which was promoted by the British as a way of edging out Italian, was
transformed into a language written in a Romance script and with a
substantial literature of its own. In 1921 the British granted the Maltese
self-government by means of a Constitution in which English was
recognized as an official language alongside Italian. In the run-up to
the Second World War, the British authorities proceeded to implement

60
For example, one survey found that: “about half of the informants (53.8 percent) speak
Italian fluently and 28.8 percent have a basic knowledge of Italian.” See Nadine
Angermann, “English and Maltese in Malta: History, Language Usage, Attitudes” (MA
dissertation, Chemnitz University 2001), p. 24, at www.tu-chemnitz.de/phil/english/
chairs/linguist/documents/angermann_malta.pdf.
61
See Joe Felice-Pace, “Maltese Legal Jargon” in Symposia Melitensia, No. 5 (2008), pp. 99–110.
574 biagio andó et al .
their linguistic reforms with renewed urgency and in 1934, whilst the
Constitution was suspended, Maltese and English were made official
languages of Malta, and Italian was replaced by Maltese as the “general
language” of the law courts and by English as the language of legal
instruction at the University; while in 1936, Maltese and English were
made the official languages of Malta. In 1934 a new committee headed by
Chief Justice Sir Arturo Mercieca was appointed by the Government to
regulate the use of Maltese in the courts. This committee agreed to
endorse a version of Maltese which was supplemented with Italian
terms wherever necessary, thus creating the distinctive Italianate version
of Maltese used in court.62
After the Second World War, which pitted Malta against Italy, the
dominance of English and Maltese as the languages of administration,
legislation, the courts, and education was assured. From then on Italian
only survived as a legal language insofar as: (1) a substantial proportion
of law students and lawyers continued to read Italian doctrine and
jurisprudence and to refer to it in order to interpret the Maltese law
codes and (2) the legal jargon used in the courts and in notarial deeds is
replete with Italian words and expressions.

XI Select Report bibliography


Articles
Athanassiou, P., “The Application of Multilingualism in the European Union
Context” (2006), papers.ssrn.com/sol3/papers.cfm?abstract_id=886048
Aquilina, K., “Rethinking Maltese Hybridity: A Chimeric Illusion or a Healthy
Grafted European Law Mixture?” Journal of Civil law Studies (forthcoming)
Cremona, J. J., “The Jury System in Malta” 13 Am. J. Comp. Law 570 (1964)
Felice-Pace, J. J., “Maltese Legal Jargon” in Symposia Melitensia No. 5, 99–110
(2008)
Ganado, J. M., “Maltese Law” 29 Journal of Comparative Legislation and
International Law 32 (1949)
“British Public Law and the Civil Law in Malta” Current Legal Problems 195
(1950)
Lee, H. I., “British Policy Towards the Religion, Ancient Laws and Customs in
Malta, 1824–1851 (Part 2), ‘The Revision of the Codes of Law’” in 4 Melita
Historica: Journal of the Malta Historical Society 1–13 (1964)

62
See Geoffrey Hull, The Malta Language Question: A Case Study in Cultural Imperialism
(Said International Ltd 1993), p. 81.
malta 575
Mercieca, A., “Sir Adriano Dingli: Sommo Statista, Legislatore, Magistrato” (Part 1),
1 Melita Historica: Journal of the Malta Historical Society 164–184 (1954);
(Part 2) 1 Melita Historica: Journal of the Malta Historical Society 221–260
(1955)

Book chapters
Bonello, G., 2004. “The Maltese Civil Code: A Brief Historical Introduction” in
Giovanni Bonello, Histories of Malta: Reflections and Rejections
(Fondazzjoni Patrimonju Malti 2004), Vol. 5
Frendo, H., “Maltese Colonial Identity: Latin, Mediterranean or British Empire?”
in Victor Mallia-Milanes (ed.), The British Colonial Experience, 1800–1964:
The Impact on Maltese Society (Mireva 1988)
Ganado, J. M., “Malta: A Microcosm of International Influences” in E. Örücü,
E. Attwooll and S. Coyle, Studies in Legal Systems: Mixed and Mixing
(Kluwer 1996)
Pullicino, J. Said, “Malta” in Robert Blackburn and Jorge Polakiewicz
(eds.), Fundamental Rights in Europe, The European Convention on
Human Rights and Its Member States 1950–2000 (Oxford University
Press 2001)
“The Ombudsman: His Role in Human Rights Protection and Promotion” in
David Zammit (ed.), Maltese Perspectives on Human Rights (Dormax Press
2009)

Books
Bonavita, I., Raccolta delle leggi di procedura delle Corti superiori Ordinarie di
Malta pubblicate dal 1814 al 1840 come sono attualmente in vigore
(Tipografia Anglo-Maltese 1841)
Saggio sulla prova giudiziaria considerata in rapporto all’attuale legislazione
maltese (Tipografia Anglo-Maltese 1844, 2nd edn, 1849)
Cremona, F., Notes on Maltese Maritime Law (Part 1) (George Schembri (ed.)
1974)
De Bono, P., Sommario della Storia della Legislazione Maltese (Malta 1897)
Dingli, A., Appunti (University of Malta Library ms)
Ganado, M. (ed.), Introduction to Maltese Financial Services Law (Allied
Publications 2009)
Harding, H., Maltese Legal History under British Rule (1801–1836) (Progress
Publishers 1980)
Hough, B. and Davis, H., Coleridge’s Laws: A Study of Coleridge in Malta
(OpenBooks 2010)
576 biagio andó et al .
Hull, G., The Malta Language Question: A Case Study in Cultural Imperialism
(Said International 1993)
Laferla, A. V., British Malta, (Aquilina 1945)
Micallef, A., Trattato delle procedure civili nel foro di Malta (Malta 1839)
Micallef, J. A., An Outline of Maltese Commercial Law (University of Malta Press
1986)
Muscat, A., Principles of Maltese Company Law (University of Malta Press 2007)
Pirotta, G. A., The Administrative Politics of a Micro-State (Mireva 1996)