ACT No. XLIV of 2016 AN ACT to provide for Constitutional reforms in the Justice Sector and for matters consequential or ancillary thereto.

I assent.

M ARIE- L OUISE

(L.S.)

C OLEIRO P RECA

President

5th August, 2016

ACT No. XLIV of 2016

AN ACT to provide for Constitutional reforms in the Justice

Sector and for matters consequential or ancillary thereto.

BE IT ENACTED by the President, by and with the advice and

consent of the House of Representatives, in this present Parliament

assembled, and by the authority of the same as follows:-

The short title of this Act is the Constitutional Reforms Short title.

(Justice Sector) Act, 2016.

PART I

This Part amends the Constitution of Malta and it shall be Amendments to

read and construed as one with the Constitution of Malta, hereinafter the

of Malta.

referred to as "the Constitution".

In paragraph (b) of sub-article (2) of article 66 of the Amendment of

Constitution for the words ''articles 95 to 100 (inclusive)'' there shall article

Constitution.

be substituted the words ''articles 95, 96, 96A, 97, 98, 99, 100, 101A,

101B,''.

Immediately after sub-article (2) of article 96 of the Amendment of

article 96 of the

Constitution there shall be added the following new sub-articles

Constitution.

''(3) Without prejudice to the provisions of sub-article

(4), before the Prime Minister gives his advice in accordance

with sub-article (1) in respect of the appointment of a judge of

the Superior Courts, (other than the Chief Justice) the

evaluation by the Judicial Appointments Committee established

by article 96A of this Constitution as provided in paragraphs

(c), (d) or (e) of sub-article (6) of the said article 96A shall have

been made.

(4) Notwithstanding the provisions of sub-article (3), the

Prime Minister shall be entitled to elect not to comply with the result

of the evaluation referred to in sub-article (3)

Provided that after the Prime Minister shall have availed

himself of the power conferred upon him by this sub-article, the

Prime Minister or the Minister responsible for justice shall

(a)

publish within five days a declaration in the Gazette

announcing the decision to use the said power and giving the

reasons which led to the said decision; and

(b) make a statement in the House of Representatives

about the said decision explaining the reasons upon which the

decision was based by not later than the second sitting of the

House to be held after the advice was given to the President in

accordance with sub-article (1)

Provided further that the provisions of the first proviso to

this sub-article shall not apply in the case of appointment to the

office of Chief Justice.''.

Immediately after article 96 of the Constitution there shall

be added the following new article

" Judicial

96A. (1) There shall be a Judicial

Appointments

Appointments Committee, hereinafter in this article

Committee.

referred to as "the Committee", which shall be a

subcommittee of the Commission for the

Administration of Justice established by article

101A of this Constitution and which shall be

composed as follows

(a)

the Chief Justice;

(b) the Attorney General;

(c)

the Auditor General;

(d) the

Commissioner

for

Administrative Investigations (Ombudsman);

and

(e)

the President of the Chamber of

Advocates

Provided that the President of the Chamber

of Advocates shall not, before the expiration of a

period of two years starting from the day on which

he last occupied a post on the Committee or he

was last a Committee member, be eligible to be

appointed a member of the judiciary.

(2) The Committee shall be chaired by the

Chief Justice or, in his absence, by the judge who

substitutes him in accordance with paragraph (d) of

sub-article (3).

(3) (a) A person shall not be qualified to

be appointed or to continue to hold office as a

member of the Committee if he is a Minister, a

Parliamentary Secretary, a Member of the House

of Representatives, a member of a local

government or an official or a candidate of a

political party

Provided that where the President of the

Chamber of Advocates is not qualified to be

appointed or to hold office as aforesaid the

Chamber of Advocates shall nominate another

advocate to sit on the Committee in his stead.

(b) The office of a member of the

Committee shall become vacant if any

circumstances arise that, if the person were not a

member of the Committee, the person would not

qualify for membership thereof.

(c) A member of the Committee may

abstain or be challenged in the same

circumstances as a judge of the Superior Courts.

(d) Where a member of the Committee

abstains or is challenged, in the case of the Chief

Justice he shall be substituted by a judge who shall

be the next most senior judge in office, in the case

of the Attorney General he shall be substituted by

the next most senior advocate according to office in

the Office of the Attorney General, in the case of

the Auditor General he shall be substituted by the

next most senior officer according to office in the

National Audit Office,

in the case of the Commissioner for Administrative

Investigations he shall be substituted by the next

most senior officer according to office in the Office

of the Ombudsman and in the case of the President

of the Chamber of Advocates he shall be replaced

by the next most senior advocate according to

office in the committee of the Chamber of

Advocates.

(4) In the exercise of their functions the

members of the Committee shall act on their

individual judgement and shall not be subject to

the direction or control of any person or authority.

(5) There shall be a Secretary to the

Committee who shall be appointed by the Minister

responsible for justice.

(6) The functions of the Committee shall

be

(a)

to

receive

and

examine

expressions of interest from persons

interested in being appointed to the office of

judge of the Superior Courts (other than the

office of Chief Justice) or of magistrate of the

Inferior Courts, except from persons to whom

paragraph (e) applies;

(b) to keep a permanent register of

expressions of interest mentioned in

paragraph (a) and to the acts relative thereto,

which register shall be kept secret and shall be

accessible only to the members of the

Committee, to the Prime Minister and to the

Minister responsible for justice;

(c)

to conduct interviews and

evaluations of candidates for the above-

mentioned offices in such manner as it deems

appropriate and for this purpose to request

information from any public authority as it

considers to be reasonably required;

(d) to give advice to the Prime

Minister through the Minister responsible for

justice about its evaluation on the eligibility

and merit of the candidates for appointment to

the above-mentioned offices;

(e)

when requested by the Prime

Minister, to give advice on the eligibility and

merit of persons who already occupy the

offices of Attorney General, Auditor General,

Commissioner

for

Administrative

Investigations (Ombudsman) or of magistrate

of the Inferior Courts to be appointed to an

office in the judiciary;

(f)

to give advice on appointment to

any other judicial office or office in the courts

as the Minister responsible for justice may

from time to time request

Provided that the evaluation referred to in

paragraph (d) shall be made by not later than sixty

days from when the Committee receives the

expression of interest and the advice mentioned in

paragraphs (e) and (f) shall be given by not later

than thirty days from when it was requested, or

within such other time limits as the Minister

responsible for justice may, with the agreement of

the Committee, by order in the Gazette establish.

(7) The proceedings of the Committee shall

be confidential and shall be held in camera and no

member or secretary of the Committee may be

called to give evidence before any court or other

body with regard to any document received by or

any matter discussed or communicated to or by the

Committee.

(8) The Committee shall regulate its own

procedure and shall be obliged to publish, with the

concurrence of the Minister responsible for justice,

the criteria on which its evaluations are made.".

Immediately after sub-article (4) of article 100 of the Amendment of

article 100 of

Constitution there shall be added the following new sub-articles

the Constitution.

''(5) Without prejudice to the provisions of sub-article

(6), before the Prime Minister gives his advice in accordance

with sub-article (1) in respect of the appointment of a magistrate

of the Inferior Courts the evaluation by the Judicial

Appointments Committee established by article 96A of this

Constitution as provided in paragraphs (c), (d) or (e) of sub-

article (6) of the said article 96A shall have been made.

(6) Notwithstanding the provisions of sub-article (5),

the Prime Minister shall be entitled to elect not to comply with

the result of the evaluation referred to in sub-article (5)

Provided that after the Prime Minister shall have

availed himself of the power conferred upon him by this sub-

article, the Prime Minister or the Minister responsible for justice

(a) publish within five days a declaration in the

Gazette announcing the decision to use the said power

and giving the reasons which led to the said decision;

and

(b) make a statement in the House of

Representatives about the said decision explaining the

reasons upon which the decision was based by not later

than the second sitting of the House to be held after the

advice was given to the President in accordance with

sub-article (1).''.

Sub-article (11) of article 101A of the Constitution shall be

amended as follows

(a)

paragraph (c) thereof shall be substituted by the

following

"(c) to exercise, subject to article 101B of this

Constitution, discipline on judges and magistrates;"; and

(b) paragraph (f) thereof shall be substituted by the

following

"(f) to draw the attention of any judge or magistrate

on any matter, in any court in which he sits, which may

not be conducive to an efficient and proper functioning

of such court;".

Immediately after article 101A of the Constitution there

shall be added the following new article

" Discipline

101B. (1) There shall be a Committee for

of judges and

Judges and Magistrates (hereinafter referred to as

magistrates.

"the Committee") which shall be a subcommittee

of the Commission for the Administration of

Justice and which shall consist of three members

of the judiciary who are not members of the

Commission for the Administration of Justice and

who shall be elected from amongst judges and

magistrates according to regulations issued by the

Commission for the Administration of Justice so

however that in disciplinary proceedings against a

magistrate two of the three members shall be

magistrates and in the case of disciplinary

proceedings against a judge two of the three

members shall be judges.

(2) The Chairman of the Committee shall

be elected by the members of the Committee

from amongst themselves.

(3) Any member of the Committee may be

challenged and shall abstain in the same

circumstances as a judge of the Superior Courts

may be challenged or may abstain. Where a

member has been challenged or has abstained, the

Commission for the Administration of Justice

shall appoint a substitute member.

(4) The

Committee

shall

exercise

discipline on judges and magistrates in the

manner prescribed in this article.

(5) Disciplinary proceedings against a

judge or a magistrate shall be commenced upon a

complaint in writing and containing definite

charges made to the Committee by the Chief

Justice or by the Minister responsible for justice,

for breach of the provisions of the Code of Ethics

for Members of the Judiciary or of a code or

disciplinary rules for members of the judiciary

promulgated according to the same procedure

according to which the said Code of Ethics is

promulgated which are from time to time

applicable to the members of the judiciary. The

complaint shall also include the grounds upon

which each of such charges is based.

(6) The Committee shall, upon receipt of a

complaint under sub-article (5), notify the said

complaint to the judge or magistrate against

whom it is made granting him or her a reasonable

time to reply.

(7) If, following prima facie consideration

of the complaint and of the reply, the Committee

considers that there are not sufficient grounds to

commence

disciplinary

proceedings,

the

Committee

shall

refrain

from

further

consideration of the case.

(8) If, following the consideration of the

complaint and of the reply as referred to in sub-

article (7), the Committee considers that there are

sufficient grounds to continue the disciplinary

proceedings the Committee shall appoint a date

for the hearing.

(9) Proceedings before the Committee

shall be held in camera unless the judge or

magistrate against whom the proceedings are

taken requests otherwise. The complainant or his

representative and the judge or magistrate against

whom the proceedings are taken shall have a right

to be present during the whole of the proceedings,

to produce witnesses in support or in defence of

the charges set in the complaint, and to be

assisted by an advocate or a legal procurator. The

Commission for the Administration of Justice

may also appoint an advocate to act as a special

independent prosecutor in the disciplinary

proceedings.

(10) If the Committee finds that the judge

or magistrate has breached the Code of Ethics for

Members of the Judiciary it shall

(a)

if it considers that the breach is

of a minor nature, either issue a warning or

impose a pecuniary penalty recoverable as a

civil debt payable to the Secretary of the

Commission for the Administration of

Justice, not exceeding ten per centum of the

annual salary of the judge or magistrate as

at the time established according to law;

(b) if it considers that the breach is

of a serious nature it may suspend the judge

or magistrate from the exercise of his duties

for a period of not more than six months on

half of his salary and allowances as

recoverable at the time;

(c)

if it considers that the breach is

of such a serious nature that it merits the

removal of the judge or magistrate from

office, it shall report its findings to the

Commission for the Administration of

Justice which shall consider whether the

evidence constitutes prima facie proof and, if

it considers that such degree of proof exists,

the Commission shall suspend the judge or

the magistrate concerned and shall refer the

matter to the Speaker of the House of

Representatives and to the Prime Minister.

During the period of suspension of a judge or

a magistrate in accordance with the

provisions of this paragraph, which shall not

exceed six months, the judge or magistrate

shall be entitled to half the salary and

allowances appertaining to his office and

after the lapse of the said period of six

months he shall again start receiving his

salary and all the allowances of his office

irrespective of whether the case referred has

been concluded or otherwise. In the event

that the proceedings before the House of

Representatives do not lead to the removal

from office of the member of the judiciary

then the member of the judiciary shall be

paid the salary and allowances which shall

have been witheld from him during all the

period of his suspension.

(11) The Committee may also upon the

request of the Chief Justice order that a judge or a

magistrate be suspended from the performance of

his duties on serious medical grounds for a

definite period during which the said judge or

magistrate shall continue to receive his full salary

and allowances. The procedure laid down in this

article in respect of disciplinary proceedings shall

apply mutatis mutandis in the case of any

proceedings taken under this sub-article.

(12) (a) There shall be a right of appeal to

the Commission for the Administration of Justice

from decisions of the Committee by the judge or

magistrate against whom the Committee makes a

finding.

(b) The appeal shall be filed with the

Secretary of the Commission for the

Administration of Justice by not later than twenty

days from when the Committee delivers its

decision.

(c) The filing of an appeal as

aforesaid shall suspend the execution of the

decision of the Committee.

(d) The

Commission

for

the

Administration of Justice may from time to time

establish rules of procedure for such appeals.

(e) The President of Malta shall not

form part of the Commission for the

Administration of Justice when the said

Commission is hearing an appeal from a decision

of the Committee.

(13) Proceedings before the Committee

shall be concluded within a period of one year

and appeal proceedings before the Commission

for the Administration of Justice shall be

concluded within a further period of six months.

(14) In the exercise of their function under

this article the Commission

for

the

Administration of Justice and the Committee for

Judges and Magistrates shall have all the powers

as are assigned to the First Hall of the Civil Court

by the Code of Organisation and Civil Procedure

or by any law from time to time regulating the

powers of Courts of civil jurisdiction.

(15) In the exercise of their functions the

members of the Committee shall act on their own

individual judgment and shall not be subject to

the direction or control of any other person or

authority.

(16) The provisions of this article shall be

without prejudice to the application of sub-

articles (2) and (3) of article 97 of this

Constitution wherever they may apply.''.

In sub-article (1) of article 107 of the Constitution for the Amendment

words ''There shall be paid'' there shall be substituted the words of

of the

''Without prejudice to the provisions of articles 101A and 101B, there Constitution.

shall be paid''.

In paragraph (a) of sub-article (4) of article 108 of the Amendment of

article 108 of

Constitution the words "of paragraph (a)" shall be deleted.

the Constitution.

PART II

This Part enacts the Members of the Judiciary (Pensions)

Act, 2016.

1. (1) The short title of this Act is the Members of the Short title and

commencement.

Judiciary (Pensions) Act, 2016.

(2) The provisions of this Act shall come into force on such a

date as the President of Malta may by notice in the Gazette establish,

and different dates may be so established for different provisions or

different purposes of this Act.

2. In this Act and in the regulations made thereunder -

Interpretation.

"Attorney General" means the person appointed in accordance

with the provisions of Chapter VII of the Constitution of Malta,

whether serving or in retirement, and who is not entitled to a pension

under the Pensions Ordinance;

"legal representative" means testate or intestate heir of the

deceased member of the judiciary or of the deceased Attorney

General, as the case may be;

"member of the judiciary" means the Chief Justice, judges and

magistrates appointed in accordance with the provisions of Chapter

VIII of the Constitution of Malta, whether serving or in retirement,

and who are not entitled to a pension under the Pensions Ordinance; Cap. 93.

"month" means a calendar month;

''pensionable emoluments'' means

(i)

in the case of a member of the judiciary or the

Attorney General who has retired before the date of the coming

into force of this Act who, however, was not entitled to a

pension under the Pensions Ordinance, the salary that would be

payable to the holder of such office on the date of the coming

into force of this Act in accordance with the Judges and

Magistrates (Salaries) Act and the President of Malta and other

Officers (Salaries) Act respectively; and

(ii) in the case of a member of the judiciary or the

Attorney General who has retired after the coming into force of

this Act, the salary payable to him in accordance with the Acts

mentioned in paragraph (i) immediately before his retirement;

"pensionable office" means the office of a member of the

judiciary or of the Attorney General, as the case may be;

''pensionable service'' in relation to a member of the judiciary or

Attorney General means service performed by the member of the

judiciary or Attorney General prior to his retirement

Provided that

(i)

service performed by a member of the judiciary

prior to his retirement in any court or tribunal of international

jurisdiction constituted by virtue of any international or

multilateral convention or treaty shall, for the purposes of

calculating length of service, also be included as pensionable

service except when that service gives a right to the member of

the judiciary to a pension or other retirement benefit from an

institution outside Malta; and

(ii) in the case of a member of the judiciary and the

Attorney General service performed in the offices of Chief

Justice, judge, magistrate, Attorney General, and as an advocate

in the Office of the Attorney General, irrespective of how the

office is referred to, before retirement shall qualify as pensionable

service;

"public service" means service of a civil capacity under the

Government of Malta or such other service as the President of Malta

may determine to be public service for the purposes of any provision

of this Act or any regulations made thereunder;

"retirement" means the date when a serving member of the

judiciary vacates his office in accordance with the provisions of

Chapter VIII of the Constitution of Malta, or a person occupying the

post of Attorney General vacates his office in accordance with the

provisions of Chapter VII of the Constitution of Malta, as the case

may be, and includes the date when a serving member of the judiciary

or a person occupying the post of Attorney General, as the case may

be, resigns or is removed due to proved inability to perform the

functions of his office due to infirmity of body or mind in accordance

with the provisions of Chapter VIII of the Constitution of Malta, or

Chapter VII of the Constitution of Malta, respectively;

''widow'' has the same meaning as given to it in article 2 of the Cap. 318

Social Security Act;

"year" means a calendar year.

3. (1) Without prejudice to article 113 of the Constitution of President may

Malta it shall be lawful for the President of Malta, from time to time make

regulations.

to make, and when made, to vary regulations for the granting of

pensions, gratuities and other allowances to Members of the Judiciary

and to the Attorney General.

(2) The said regulations and any regulations varying the same

as aforesaid, shall have the same force and effect for all purposes as if

they were contained in this Act, and the term "this Act" shall in the

following articles be read and construed accordingly.

(3) Whenever the President of Malta is satisfied that any

regulation made under this article should have retrospective effect in

order to confer a benefit, that regulation may be given retrospective

effect for that purpose.

(4) No regulation made under this article shall have effect

unless it has received the prior approval of the House of

Representatives signified by resolution.

(5) Any pension or gratuity granted under this Act shall be

computed in accordance with the provisions in force at the actual date

of retirement of a member of the judiciary or of the Attorney General,

as the case may be.

4. There shall be charged on and paid out of the Consolidated Pensions, etc.,

Fund all such sums of money as may from time to time be granted by to

the revenues of

the President of Malta by way of pension, gratuity or other allowance Malta.

in accordance with this Act.

5. A member of the judiciary, as well as the Attorney Pensions are a

General, shall have the right to a pension, gratuity, or allowance under right.

this Act or under any regulations made thereunder

Provided that a member of the judiciary or the Attorney

General, as the case may be, shall forfeit the right to a pension,

gratuity or allowance under this Act or under any regulations made

thereunder if he or she is removed from office in accordance with the

provisions of Chapter VIII or Chapter VII, respectively, of the

Constitution of Malta due to proved misbehaviour.

6. (1) A member of the judiciary or a person who formerly

occupied the post of Attorney General, who is retired on the date of

coming into force of this Act, shall be entitled to a pension, gratuity

or other allowance as prescribed by regulations made under this Act.

(2) A member of the judiciary or the Attorney General, as the

case may be, who is in office on the date of coming into force of this

Act will be entitled on retirement to a pension, gratuity or other

allowance being granted by virtue of this Act.

7. A pension granted to a member of the judiciary or to the

Attorney General, as the case may be, under this Act shall not exceed

two-thirds of his pensionable emoluments.

8. If any member of the judiciary or the Attorney General, as

the case may be, to whom a pension has been granted under his Act is

appointed to a full time office in the public service, or is or was after

his retirement appointed to an office established by the Constitution,

also being a pensionable office under the Pensions Ordinance, and

subsequently retires in circumstances in which he may be granted a

pension, or leaves office at the end of his appointment or re-

appointment, as the case may be, he may be granted, in lieu of his

previous pension, a pension computed as if the periods of his service

had been continuous, and such pension may be based on his

pensionable emoluments on his previous or final retirement from the

service of Malta, or from the said office established by the

Constitution, whichever are the greater

Provided that if, on his previous retirement, he was paid a

gratuity and reduced pension, the gratuity, if any, to be paid to him on

final retirement shall be reduced by the amount of the gratuity already

paid.

9. No pension, gratuity, or allowance granted under this Act

shall be assignable, transferable or liable to be attached, sequestered,

or levied upon, for or in respect of any debt or claim whatever, except

in so far as is provided in article 381(3) of the Code of Organization

and Civil Procedure.

10. If any member of the judiciary or the Attorney General, as

the case may be, to whom a pension or allowance has been granted

under this Act becomes a bankrupt, then such pension or allowance

shall forthwith cease

Provided always that in any such case where a pension or

allowance ceases by reason of the bankruptcy of the pensioner, it

shall be lawful for the President of Malta, from time to time, during

the remainder of such pensioner’s life or during such shorter period or

periods, either continuous or discontinuous, as the President of Malta

shall think fit, to cause all or any of the moneys to which such

pensioner would have been entitled by way of pension or allowance

had he not become a bankrupt, to be paid to or applied for the

maintenance and personal support or benefit of all or any, exclusive

of the other or others, of the following, namely, such pensioner

himself and any wife, child or children of his, in such proportion and

manner as the President of Malta thinks proper and such moneys shall

be paid or applied accordingly.

11. If any member of the judiciary or the Attorney General, as Pensions, etc.,

the case may be, to whom a pension has been granted under this Act to

conviction.

is sentenced to a term of imprisonment by a competent court in Malta

or abroad for any crime or offence, then it shall be lawful for the

President of Malta to direct that such pension or allowance shall

forthwith cease

Provided that, where a pension or allowance ceases for the

reason aforesaid, it shall be lawful for the President of Malta to cause

all or any part of the moneys to which the member of the judiciary or

Attorney General concerned, as the case may be, would have been

entitled by way of pension or allowance, to be paid to or applied for

the benefit of his or her surviving spouse or surviving partner in a

civil union, child or children.

(1) Subject to the provisions of this article, a widow or Widow’s

widower or the survivor of a civil union of a member of the judiciary pension.

or of an Attorney General who was at the time of his death entitled to

a pension under this Act, shall be entitled to receive a pension

Provided that where there are one or more widows or

widowers or survivors of a civil union who had been married to or

had been in a civil union with a member of the judiciary or an

Attorney General at any time during his tenure of office, such

widow’s pension shall be apportioned in the manner provided in

article 42A of the Social Security Act

Provided further that a person entitled to a pension under

this article who is also entitled to a pension under any other provision

of this Act shall only be entitled to receive the higher of such

pensions.

(2) The provisions of sub-article (1) shall also apply to a

widow or widower of or to the survivor of a civil union with a

member of the judiciary or Attorney General who has not yet attained

pensionable age at the time of his death but who, before such death,

satisfied the requirements of pensionable service under this Act.

(3) The rate of pension payable under this article shall be

equivalent to five-sixths of the pension to which the member of the

judiciary or the Attorney General was entitled, in accordance with the

current pensionable emoluments that would have been applicable to

the member of the judiciary or Attorney General but for his death.

(4) No pension shall be payable to a widow under the age of

sixty-five years during any time in which she is in receipt of earnings

from a gainful occupation exceeding the amount specified under article

32 of the Social Security Act in respect of any period of four weeks.

The provisions of this Act and any regulations made

thereunder shall apply to all members of the judiciary and to persons

occupying the post of Attorney General appointed after the 15th

January, 1979, and no pension, gratuity or other allowance shall be

payable under this Act, nor shall any other payment be made

thereunder, to any person who was a member of the judiciary or a

person occupying the post of Attorney General before the 16th

January, 1979, or to the surviving spouse or surviving partner in a

civil union, child or other relative of any such person.

Passed by the House of Representatives at Sitting No. 421 of the

20th July, 2016.

A NĠLU F ARRUGIA

Speaker

R AYMOND S CICLUNA

Clerk of the House of Representatives

€1.62