Professional Documents
Culture Documents
Malta
biagio andó, kevin aquilina, j. scerri-diacono
and david zammit*
* 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.
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.
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.
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 .
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.
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.
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.
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
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.
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).
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.
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.
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.
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
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.
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.
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.
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).
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.
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 .
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.
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)