Chapter Eight of the Maltese Constitution: A Comedy of Errors

Since the mid-nineties amendments have been made, spurred by different circumstances and scenarios, regarding the appointment , and removal from office,  of members of the judiciary. Parliament availed itself of the opportunity given by article 97 of the 1964 Constitution to pass laws regulating the procedure for the removal from office of such members. [1]This contribution will analyse the amendments made to the apex law in Malta in this respect, underlining anomalies ,contradictions, bad drafting and shortcomings which are self-evident,  and yet remain engraved in Malta’s supreme law.[2]

Appointment of members of the judiciary.

In the original 1964 Constitution the power to appoint members of the judiciary was in the hands  of the  Head of State on the binding advice  of the Prime Minister  . In 1994 [3]a slight change was made in the method of appointment in the sense that the Prime Minister could seek the advice of the newly established  Commission for the Administration  of Justice . [4]The only time this discretion  was  exercised tolled the death knell of this provision. The Commission rather bizarrely commented negatively , when asked , for the first time, for its advice by the Prime Minister,  on the appointment  of a particular candidate proposed   by government, not because of lack of integrity  or competence,  but owing to an erroneous assessment that he had not practiced in a court of law for the prescribed period of time, interpreting  the norm that a lawyer is eligible for  appointment  as judge, only if he had actually practiced at the law courts during such time. [5]  Since then ,and so long as the Prime Minister enjoyed the power of advising the President on such appointments, no Maltese premier ever asked again the Commission for its opinion on the appointment of judges or magistrates.

The original intention of the establishment of the Commission in 1994 was to grant it the power to discipline members of the judiciary short of their removal from office. The then Opposition  opposed this proposal forcing government to amend  the  Constitution introducing an unentrenched article 101A withdrawing the proposal to discipline such  members .The Commission, however, was entrusted with the task of sifting evidence against members of the judiciary before deciding that there was prima facie evidence  against such member and then sending the case  to the House of Representatives  where a two-thirds  majority  of all the members was needed, praying for  removal of the member on grounds of proven incapacity or misbehaviour. The Commission, however, was empowered to halt such proceedings if it found that there was no prima facie  evidence blocking the continuance of such removal proceedings, even if Parliament by a  two thirds majority considered dismissal to be justified.

Here lies the first possible unconstitutionality; how can Parliament by a majority of one through an unentrenched provision, circumscribe the powers of Parliament to remove a judge or magistrate, powers  arising from an unentrenched constitutional provision ?This matter was raised in the Depasquale case.[6]

 In that case applicant inter alia alleged that this provision of allowing the Commission to block removal proceedings without allowing Parliament to ultimately decide such matter, was unconstitutional.

The Constitutional Court begged to differ. Once the Constitution provided that Parliament could make any law regulating the procedure for the removal from office  of a judge or magistrate , it could even set up a Commission which could block any removal procedure. 

It ruled that: 

The only thing the Commission (for the Administration   of Justice) does in its report to the Speaker is to state whether from the investigation it conducted there is any prima facie evidence regarding misbehaviour or incapacity of the investigated member of the judiciary. This is not the sane and does not constitute  a finding of guilt,  As the court of first instance  observed in the appealed  judgment , the law as it stands today does not allow the motion for removal be presented before the House  before the  Commission finds that at least  there  is a prima facie justification   or basis for such removal. This process serves as a filter  so that frivolous and vexatious motions are not allowed

As to the allegation that the authority of Parliament to decide on the removal of a judge was being abolished in favour of the Commission which could stop the proceedings it argued that:

On this point the court of first instance observed that “ amongst all the arguments put forward by applicant this is the one which may create difficulties as to the legal validity of this law,.

In the opinion of this  Court ,  it does not seem  that the intervention of the Commission  in the procedure   under examination was done ultra viresthe Constitution since , as already has been stated, article 97(3) allows the introduction  of similar proceedings. Apart from this, however it does not appear  that Parliament abdicated its authority to remove a judge form office since such a decsion remained within the powers of the House  of Representatives  because, as justly observed by eth court of first instance , an observation with which this Court concurs, 

“Parliament does not divest  of its powers if  does not allow any debate  before it regarding a  motion for the  removal from office of  a judge when such motion cannot be lawfully approved since it is without any basis , not even on a  prima facie basis that a judge  was guilty of misbehaviour or found incapable . In any case Parliament cannot terminate the appointment of a  member of the judiciary . Consequently , where the law provides in such case that a motion for removal from office cannot be brought before Parliament, no authority of parliament is being to remove form office a judge is being neutralized  since where there is no such evidence for removal , Parliament does not have such power to remove the holder of such office.”

This judgment leaves much to be desired  . Certainly a general provision  allowing   Parliament to enact a  law regarding procedure should not, in its application,  be in direct contrast with a  right belonging to Parliament  to remove a judge  or magistrate  from office , the more  so when this power is found in an entrenched  provision  of the Constitution .

So long as the 1994 law established a Commission which sifts any allegation of incapacity or misbehaviour against a judge or magistrate, collect evidence and send it to Parliament for final decision, one can argue that Parliament was only regulating the pre-parliamentary procedure and then leaving the matter to the final decision of the legislature.

In this sense the judgment in   Depasquale  was right when the Court  argued that:

From an examination of article 97 of the Constitution , there  is  nothing which prohibits the elaboration of such procedure (for removal) by the establishment of a  Commission endowed with powers as laid down in the challenged law , even if such procedure represents something new which did not exist before ….if the report (by the Commission) states that there exist prima facie evidence of misbehaviour or incapacity it is the House of Representatives  which will consider the motion together with the said Report   

However,  when the law provided that the Commission could block the proceedings  without any referral to Parliament, such an act could not be justified by a general provision  merely stating that Parliament could regulate  the procedure relating to any removal motion.

This issue has been surpassed by events in the sense that in 2016  the entire article  

was entrenched by a two-thirds majority of all the members of the legislature in virtue of article 66 of the Constitution. .

The issue however remains : is there a hierarchy of constitutional norms?

In Adrian Agius,[7] the Constitutional Court ruled that an entrenched   provision of the Constitution can never be found to be in breach of another provision of the same supreme law . However, certainly one cannot say that an unentrenched provision of Malta’s apex law  can prevail over an entrenched  provision  and in this  sense there is a certain hierarchy of constitutional norms. Otherwise, a government enjoying only an absolute majority of one seat  in Parliament may ride roughshod of entrenched provisions of the  Constitution.

This matter cropped up again in a 2025 amendment to the Constitution [8]introducing the office of Commissioner for standards in the Judiciary. Since there was no agreement with the Opposition on the matter Government through its majority in Parliament not amounting to two thirds introduced  an unentrenched provision setting  up this office. Since the holder of this office  is entrusted with gathering evidence against a member of the judiciary and filing a report to either the Justice  Minister  or the Chief Justice  it is  felt that the office whose holder has so far reaching powers should have been entrenched in the Constitution.

 Composition of the CAJ            

This has also given rise to legal controversies. In the original version launched in 1994 of article 101A  of the Constitution, the President, although forming part of the Commission, did not have an original vote but only a casting vote in case of a tie .

In 2020 the composition was changed. The President was given an original vote and a casting vote; and the Attorney General was removed from its composition  . This change led to a bizarre arithmetical error. The Constitution as it stands now after the 2020 amendment states that the Commission shall consist of the “President who shall be the Chairman and nine other members as follows:”

 When one then counts the members other than the President  the result is that they are eight! What probably happened is that after the Attorney General  was removed from the composition, the number “nine” was not changed to   “eight”!

Another point is whether it is wise to have the President, not only presiding such an all powerful Commission in matters of removal from office of members of the judiciary,  but also whether a President who is considered  as a  super partes  figure,  should also be given an original vote. Things get messier when one  considers  that ultimately it is the President who , on the advice of the Commission  who removes the member of the judiciary ; so much so that article 101B (12) then provides that the President of Malta shall not form part of the Administration of Justice Commission when the said Commission is hearing an appeal from a  decsion of the Committee for Judges and Magistrates. The question immediately arises  : why involve the President at all?. Probably the inclusion of the President in this constitutional organ was inspired  by the position prevailing in Italy with the Consiglio Superiore della Magistratura presided  over by the Italian head of state which has attracted its fair share of criticism .

 The fact that layer over layer of constitutional amendments, disjointed one from the other,  have been included in the Constitution ,  has produced some bizarre results. In the appointment of members of the judiciary  the original 2016 amendment  setting up the Judicial Appointments Committee as a subcommittee of the Commission for the Administration of Justice (CAJ)  , provided  that the Committee should keep a permanent register of expression of interest and should receive and examine expression of interest from persons  interested in being appointed to the office of a judge of the Superior Courts other than Chief Justice or of magistrate  .

In 2020  the  Constitution was further amended  altering completely the method of appointment. A call for applications is now issued by the Justice  Ministry, ; following the sorting of applications , the Judicial Appointments Committee chooses three candidates  who are shortlisted  and submitted to the President  who chooses one. What is the point, therefore,  of keeping a  “permanent register” of interested persons. ?

Another serious flaw in the system is that when the President, acting according to her own deliberative judgment , chooses one person to be appointed as member of the judiciary, the Head of State is obliged to publish the names of the two other shortlisted candidates. Considering that a serving Magistrate could have applied for the post of judge, it would seem to be an insipid requirement to publish the name of a magistrate who was not chosen, the more so if the candidate chosen  is not even a member of the judiciary. This useless provision can also deter competent persons from applying lest if they fail  to  be appointed their name would be rendered public.

Removal from office of members of the Judiciary.

The Venice Commission in 2018 had proposed that ”politicians “ should not be involved in the removal from office of judge and  magistrates. This proposal, accepted as shall be seen by both political parties and now forming part of the Constitution, has raised some eyebrows in the legal field.  The Venice Commission in its 2018 Report stated  that: 

The Venice Commission recommends: The removal of a judge or magistrate from office should not be imposed by a political body; There should be an appeal to a court against disciplinary decisions directly imposed by the Commission for the Administration of Justice.

The first point to be considered is that in several democratic countries in the Western world politicians are involved in the removal  from office of members  of the judiciary. 

The United States Constitution provides that the removal of the holder of any federal office, including therefore that of a federal judge, can only be made by a vote in favour of at least two-thirds of members of the US Senate present and voting[9]. In the United Kingdom, High Court judges, as with all judges in England and Wales, hold office during good behaviour and a High Court judge can only be removed by the Queen upon an Address of both Houses of Parliament. No qualified majority is needed. In the Commonwealth alone, apart from the United Kingdom and Malta (up to 2020), Australia[10].India and New Zealand also  adopt a  parliamentary procedure for removal   

A federal judge in the United States is impeached  by the House of Representatives  by an ordinary majority and then removed by the Senate following a  trial before it whose verdict must obtain a two-thirds  majority of all senators. In the United Kingdom   members   of the judiciary are removed for  serious reasons by a  procedure before the House of Commons and the House of Lords. [11]The legislature is also involved in Switzerland to remove from office judges. 

The first faux pas committed in the method of removing from office  a judge  or magistrate  actually occurred with the enactment of  Act No. XLV.2020 where the general power of any member of Parliament to propose an address to the President laying down the grounds on which a member of judiciary  should be removed was done away with . Since then only the Minister for Justice  and the Chief Justice can trigger off the removal proceedings. This means that any person including a  member of Parliament who feels that a judge  or magistrate  should  be removed from office  for serious grounds,  can only apply either , if he is an Opposition MP to his political  adversary  or else through the Chief Justice  who heads the judiciary. There is no remedy if , for whatever  reason,  these two constitutional figures fail to trigger off such proceedings.

The second flaw lies in the appointment and functions of the holder of the newly established  office of Commissioner for Standards in the Judiciary. Apart from the fact that his office is not entrenched in the Constitution, the Commissioner is entitled to receive “concerns” from anyone regarding the behaviour and actions of the judiciary. Is the word concern, a new word introduced in the Constitution, something more vague than a complaint ? Is the  threshold as to what amounts to a breach  for  something to be classified as a concern,  lower or higher than a mere complaint. Another flaw is that the Commissioner has to be either a former judge or magistrate  or a senior advocate; but there is no definition  of senior advocate![12]

Appointment to office of members of the judiciary.

A strange  provision relating to such appointment is found in article  96B (2) introduced in 2020 which states as follows:

96B ..(2)  No person shall be entitled to be appointed to the office of judge or magistrate unless that person

:(a) has the number of years of practice of the profession of advocate in Malta as established in articles 96 or 100 of the Constitution as the case may be;

(b) at the time of application be in possession of a valid warrant to practice as an advocate in Malta and must not be precluded from appointment as a member of the judiciary by any legal impediment;

(c) is able to express oneself in the Maltese and English language  and  able  to  communicate  in  a  clear  and concise manner;

(d) possesses integrity, correctness and honesty in public and private life;

(e) has  knowledge  of  the  law,  of  court  procedures  and professional experience;

(f) is industrious, able to work under pressure, diligent, analytical and able to make decisions;

(g) is impartial and independent;

(h) is not involved in any commercial or business activity and does not have a financial situation which raises doubt about the ability to perform judicial duties in a proper manner;

(i) is able to work in a collegial environment; and

(j)  possesses knowledge of the Code of Ethics for members of the Judiciary and is willing to undertake continuing professional development.

This provision ,couched in mandatory and peremptory language,  raises deep issues, and will certainly  create  problems in the future . Its contents could have found their   appropriate place in an internal manual drafted by the Appointments Committee ; but to include such rules and criteria some of them couched in general and vague language in the Constitution and then state unequivocally that “no person shall be entitled to be appointed to the office of judge or magistrate  “ is inviting legal trouble.

To complicate matters even further, the Judicial Appointments Committee published an internal manual of rules and guidelines[13]  which goes beyond these criteria. One of them is that any person who is involved  in the political  arena  as a card carrying member of  a political party is precluded  from being considered to any judicial office  for a period of twelve months  from his or her  complete detachment  from politics. The Manual provides as follows :

No Applicant shall be recommended for judicial office by the Committee unless at least 12 months would have lapsed from the date when all political and other affiliations have been severed and the date of the report to the President making a recommendation 

This criterion  is conspicuous by its absence in the Constitution. If the Constitution  goes  in such  detail as precluding a candidate who “ is not able to work in a collegial environment” how come a Committee then  introduced  even more rigorous criteria ?.

In Anna Mallia ,[14] a female practising lawyer challenged these internal rules alleging that they ran counter to freedom of association sanctioned by the Constitution. Besides, the internal rules could never run counter or be in conflict with an apparently   exhaustive list  of criteria  established in the Constitution. Applicant also alleged that the appointments Committee was not composed according to law since a Magistrate forming part of the Committee had abstained and was not substituted. 

Applicant overcame a preliminary plea that she lacked juridical interest to institute proceedings for she had not applied to the post of a judiciary member nor did she commit herself to do so in the future; but lost on the merits since rather strangely the court of first instance  ruled that it had no jurisdiction  to declare as  ultra vires  the internal rules of the Committee.

In spite of the fact that a  constitutional organ had published internal rules, which were allegedly in breach of the Constitution,  the court of first instance ruled that such ultra vires action should have been filed as an administrative  and not constitutional action, and rejected the request on the technical ground that an administrative  law action had to be confirmed  on  oath on filing.

In this case the first request – namely a  declaration that the Committee was not composed in terms of article  96A of the Constitution – is purely of an administrative nature . In her note  of submissions applicant argues that since  one is here dealing with a  constitutional organ, her case is  not an administrative one for the Committee was not established by the State but by the Constitution. This is not legally correct . The definition of administrative  act  is rather wide; besides, article 469A (Ch12) itself lists as the first ground of review the right of a  court to review an administrative act  when it  breaches the Constitution . For such a request to be made one neds to file  application which is conformed on oath, and not otherwise. Therefore there is n o doubt that this request was irregularly filed and therefore cannot be acceded to. [15]

On appeal,[16] the apex Court in Malta washed its hands  of this thorny question  by stating that applicant did not enjoy juridical  interest or legal standing  . End of the matter. It stated that:

Plaintiff in this action does not enjoy victim status – neither direct nor indirect- which the court of first instance granted her….this Court recalls that it is established that the interest that a law be abided by  is not the juridical interest which leads to a victim status in an action for breach of fundamental rights . Secondly. The fact that plaintiff did not file an application to compete for the particular call for applications, continues to underline the lack of victim status in that procedure which led to the selection of the new members of the judiciary. [17]

. 

Appointment of the Chief Justice 

Article 96(1) provides that the Chief Justice “ shall be appointed by the President acting in accordance with a resolution of the House supported by the votes of not less than two thirds of all the members of the House.” One would therefore expect that his removal from office should be similarly supported by a  two thirds majority of all the members of the legislature. Instead, he can be removed from office like any other judge,  namely,  by the Commission for the Administration of Justice with an absolute majority of one. This is the only holder of office who is chosen by a  two thirds majority of members of the House of Representatives , but not removed in the same way. All other offices under the Maltese  Constitution which require a qualified majority of two thirds for the holder of such offices to be appointed , require a similar qualified majority in Parliament to be removed e.g. President of Malta, Ombudsman, Auditor General, Deputy Auditor General.. 

Conclusion

These are only the main shortcomings contained in Chapter VIII of the Constitution. Some of them can be easily amended since they are the result of oversight or bad drafting. Others need further thought and debate; but the discussion needs to start to close the loopholes, make the Chapter coherent and logical in its provisions; and prevent future litigation which can be easily avoided through the necessary changes. 

[1] “98(2) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the inability or misbehaviour of a judge of the Superior Courts under the provisions of the last preceding subsection .”

[2] See also:  Tonio Borg The 2020 Constitutional Amendments: A Legal Analysis (ELSA Malta Law Review)(Edition VII 2020): 97; and by same author: The Constitution of Malta anomalies and imperfections  in  Id-Dritt Journal VOL XXXII 107 GHSL 2022) and The appointment and removal from office of the judiciary Times of Malta 20 February 2021). 

[3] Act No IX. 1994

[4] 101A (11) of Constitution (today substituted) listed amongst the functions of the Commission the following ” c) when so requested by the Prime Minister, to advise on any appointment to be made in terms of sections 96, 98 or 100 of this Constitution;

[5] In the case of the proposed appointment of Dr Andre Camilelri as judge of the superior courts on 10 November 2002, the Commission surprisingly rebuffed the Prime Minister by stating that “ though Dr Camilleri had the necessary experience in several public and private entities , such experience does not necessarily amount to the exercise of  profession of an advocate . “ For a different opinion on this matter see   Prof. Kevin Aquilina Judicial Appointments in Malta : A historic-legal perspective in Melita Historica VOL XV No 3 (Malta 2010) 233-254.

[6][6] Mr Justice Anton Depasquale   vs Prime Minister (CC)(4 September 2000)(Vol LXX.IV.I.308) . 

[7][7] Adrian Agius v State Advocate (CC)(12 July 2023)(690/21). 

[8] Avt NO XVI.of 2025 

[9]  Article 1 Section 6 Paragraph 6: “The Senate shall have the sole power to try all impeachments. When sitting for that purpose they shall be on oath or affirmation...and no person shall be convicted without the concurrence of two-thirds of the members present.”

[10]  Art 72 of the Australian  Constitution: “The Justices of the High Court and of the other courts created by the Parliament (i) shall be appointed by the Governor-General in C(ii) shall not be removed except   New Zealand and  India adopt a parliamentary procedure for removal.

[11] See O.Hood Phillips and Jackson: Constitutional and Administrative Law (Eight Edition)(2001 Sweet and Maxwell :433

[12] See David Fabri: The Constitution of Malta (Amendment )Act 2025: Concerns and Controversies (Sunday Times of Malta online 31 August 2025.) 

[13] JUDICIAL APPOINTMENTS COMMITTEE – RULES AND GUIDELINES Approved by the Judicial Appointments Committee on the 10 November 2020.

[14] Dr Anna Mallia vs Judicial Appointments Committee (FH)(2 December 2021)(234/21) (Mr Justice G. Mercieca. ).

[15] F’din il-kawża, l-ewwel talba – għal dikjarazzjoni li l-Kumitat ma kienx kompost skont l-Art. 96A tal-Kostituzzjoni – hija purament ta’ natura amministrattiva. Fin-nota ta’ sottomissjonijiet tagħha, ir-rikorrenti targumenta li trattandosi ta’ organu kostituzzjonali, l-kawża tagħha mhix waħda amministrattiva għaliex il-Kumitat ma ġiex maħtur mill-Istat iżda mill-istess Kostituzzjoni. Dan mhux legalment korrett. Id-definizzjoni ta’ “għemil amministrattiv” hija waħda wiesa ħafna. Barra minn hekk, l-Art. 469A innifsu l-ewwel ħaġa li jistipula hu proprju li l-Qorti tista’ tistħarreġ għemil amministrattiv meta “jikser il-Kostituzzjoni” . Biex issir talba bħal din, jinħtieġ li l-kawża tkun infetħet permezz ta’ Rikors Guramentat, u mhux b’rikors mhux maħluf. M’hemmx dubju li din it-talba saret irritwalment u għalhekk ma tistax tintlaqa’.

[16] Dr Anna Mallia v Judicial Appointments Committee et (CC)( 26 January 2024)(234/21).

[17] l-attriċi ma għandhiex f’din il-kawża l-istat ta’ “vittma” – la dirett u lanqas indirett – li l-ewwel Qorti għarfitilha. …din il-Qorti tfakkar li jinsab stabbilit li l-interess li wieħed jara li l-liġi titħares m’huwiex l-interess ġuridiku li jnissel l-istat ta’ “vittma” f’azzjoni ta’ jksur ta’ jedd fundamentali31. Fit-tieni lok, il-fatt li l-attriċi ma ressqitx talba biex tikkonkorri għas-sejħa partikolari jkompli jżid in-nuqqas ta’ stat ta’ “vittma” tagħha f’dak il-proċess li sar biex wassal għall-għażla tal-ġudikanti l-ġodda.