ACT No. XLV of 2020 AN ACT to provide for the amendment of the Constitution of Malta and to the Commission for the Administration of Justice Act, Cap. 369, relative to the removal from office of judges and magistrates BE IT ENACTED by the President, by and with the advice and

I assent.

(L.S.)

GEORGE VELLA

President

7th August, 2020

ACT No. XLV of 2020

AN ACT to provide for the amendment of the Constitution of Malta

and to the Commission for the Administration of Justice Act, Cap. 369,

relative to the removal from office of judges and magistrates

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 Various Laws (Removal from

Office) (Amendment) Act, 2020.

PART I

Amendments to the Constitution of Malta

This Part amends the Constitution of Malta and it shall be

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

in this Part referred to as "the Constitution".

Sub-article (5) of article 91 of the Constitution shall be

substituted by the following

"(5) The Attorney General shall not be removed from his

office except by the President upon an address by the House

supported by the votes of not less than two-thirds of all the

members thereof and requesting such removal on the grounds of

proved inability to perform the functions of his office (whether

arising from infirmity of body or mind or any other cause) or

proved misbehaviour.

(6) Parliament may by law regulate the procedure for the

presentation of an address and for the investigation and proof of

the inability or misbehaviour under the provisions of the last

preceding sub-article.".

Sub-article (5) of article 91A of the Constitution shall be Amendment of

article 91A of

substituted by the following

the Constitution.

"(5) The State Advocate shall not be removed from office

except by the President upon an address by the House supported

by the votes of not less than two-thirds of all the members

thereof and requesting such removal on the ground of proved

inability to perform the functions of office (whether arising from

infirmity of body or mind or any other cause) or proved

misbehaviour.

(6) Parliament may by law regulate the procedure for the

presentation of an address and for the investigation and proof of

the inability or misbehaviour under the provisions of the last

preceding sub-article.".

Article 97 of the Constitution shall be amended as follows

Amendment of

article 97 of the

Constitution.

(a) sub-article (2) thereof shall be substituted by the

following

"(2) A judge of the superior courts shall not be

removed from his office except as provided in articles

101B and 101C of the Constitution."; and

(b)

sub-article (3) thereof shall be deleted.

Sub-article (4) of article 100 of the Constitution shall be Amendment of

article 100 of

substituted by the following

the Constitution.

"(4) The provisions of sub-article (2) of article 97 of the

Constitution shall apply to a magistrate of the inferior courts.".

Article 101A of the Constitution shall be amended as follows: Amendment of

article 101A of

the Constitution.

(a) paragraph (b) of sub-article (1) thereof shall be

deleted and paragraphs (c), (d), (e) and (f) shall be renumbered

as paragraphs (b), (c), (d) and (e) respectively;

(b) sub-article (2) thereof shall be substituted by the

following new sub-article

"(2) The President shall have an original vote.".

(c) sub-article (13) thereof shall be substituted by the

following

"(13) The powers of the President under any law with

regard to the subrogation of judges and magistrates and to

the assignment of duties of judges and magistrates shall be

exercised on the recommendation of the Chief Justice

Provided that where the Chief Justice fails to

make a recommendation to the President, the President

shall exercise this power on the advice of the Minister

responsible for justice

Provided further that in any such case the

Minister responsible for justice shall immediately publish

in the Gazette, a notice of that fact together with the

reasons therefore, and he shall make a statement of such

fact in the House not later than the second sitting

immediately after he has so advised the President."; and

(d) in sub-article (14) thereof, the words "The question

whether" shall be substituted by the words "Subject to provisions

of sub-article (1) of article 101C of the Constitution, the question

whether".

Paragraph (c) of sub-article (10) of article 101B of the

Constitution shall be substituted by the following

"(c) if it considers that the breach is of such a serious

nature as to merit the removal of the judge or magistrate from

office, or is based on the grounds of incapacity to perform the

functions of his office (both whether for bodily or mental illness

or for any other reason), it shall report its findings to the

Commission for the Administration of Justice which shall

consider whether the evidence proves the case prima facie and, if

it considers that there is such degree of proof, the Commission

shall suspend the judge or magistrate concerned and shall

proceed with the hearing of the case. During the period during

which a judge or magistrate is suspended in accordance with the

provisions of this paragraph, which shall not exceed six (6)

months, the judge or magistrate shall be entitled to half the salary

and allowances relative to the office and after the expiry of such

a period of six (6) months he shall resume receiving his salary

and all allowances for his post irrespective of whether or not the

case referred has been concluded. In the event that the

Commission for the Administration of Justice considers that the

breach under investigation merits the removal of the judge or

magistrate from office, it shall proceed to advise the President to

remove the judge or magistrate from office for proven

misconduct or proven incapacity to perform the functions of his

office

Provided that in the event that the proceedings before

the Commission for the Administration of Justice do not result in

the removal of the member of the judiciary, then the member of

the judiciary shall be paid the salary and allowances which have

been held throughout the period of suspension.".

Immediately after article 101B of the Constitution there shall Addition of new

be added the following new article

" Appeal from

101C. (1) There shall be a right of appeal to the

the decisions

Constitutional Court from a decision of the Commission

of the

for the Administration of Justice’s finding for the removal

Commission

for the

Administration of a judge or magistrate and from the decision of the

of Justice.

Commission for the Administration of Justice delivered in

accordance with article 101B(12).

(2) The appeal shall be filed within eight working

days from the date when the decision of the Commission

for the Administration of Justice is communicated to the

judge or magistrate.

(3) The filing of an appeal in terms of sub-article (1)

shall suspend the execution of the decision of the

Commission for the Administration of Justice.".

PART II

Amendments to the Commission for the

Administration of Justice Act

This Part amends the Commission for the Administration of Amendments to

Justice Act and it shall be read and construed as one with the the

Commission for the Administration of Justice Act, hereinafter in this Administration

Part referred to as the "principal Act".

In article 8 of the principal Act, the words "in connection with Amendment of

an address as is referred to in article 97" shall be substituted by the article

words "according to article 101B".

Article 9 of the principal Act shall be substituted by the Substitution of

following

" Procedure to

9. (1) When the Committee for Judges and

Magistrates reports its findings to the Commission in

accordance with article 101B(10)(c) of the Constitution,

101B. the Commission shall communicate the report of the

Committee for Judges and Magistrates to the judge or

magistrate, as the case may be, and shall be given a

reasonable opportunity to submit a written statement

within such time as may be specified by the Commission.

(2) The Commission shall carry out the necessary

investigation and report to the President. If the report of

the Commission states that there is no misconduct or that

the judge or magistrate has no incapacity, no further

action shall be taken in respect of that report.

(3) If the report of the Commission has found that

the misconduct has been proven, the Commission shall

make a report of its decision to the President advising the

removal of the judge or magistrate as the case may be. A

copy of this decision shall be given to the judge or

magistrate, as the case may be.

(4) The proceedings of the Commission under this

article shall be kept in camera. The judge or magistrate

whose conduct is being investigated shall have the right to

be present throughout the trial, to produce evidence in

support of the allegations mentioned in the report of the

Committee for Judges and Magistrates or defence, and to

be assisted by a lawyer or legal procurator.

(5) The decision of the Commission may be appealed

by the judge or magistrate, as the case may be, in

accordance with article 101C of the Constitution.".

In sub-article (3) of article 10 of the principal Act, the words

"as is alleged in the relative motion referred to in article 10(1)." shall

be substituted by the words "as is alleged in the report of the

Committee for Judges and Magistrates referred to in article 10(1).".

Immediately after article 11 of the principal Act there shall be

added the following new article

" Procedure to

12. (1) Where notice is given in the House of a

motion for presenting an address to the President as is

referred to in article 91(5) and article 91A(5) of the

91 and 91A of

Constitution, the Speaker shall, without allowing any

publicity, keep the motion pending, and shall refer the

same for investigation to the Commission.

(2) The motion shall contain definite charges against

the holder of the office on the basis of which the

investigations are to be held. Together with the motion

there shall be filed a statement showing the grounds on

which each of such charges is based.

(3) Such charges together with such statement shall

be communicated to the holder of the office and the

ho l d e r of t h e o ff i c e s h a l l b e gi ve n a r e a s o na b l e

opportunity to present a written statement of defence

within such time as may be specified by the Commission.

(4) The Commission shall carry out the necessary

investigation and make a report thereon to the Speaker. If

the report of the Commission contains a finding that there

is no misbehaviour or that the holder of the office does

not suffer from any inability, then, no further steps shall

be taken in the House in relation to the report and the

motion pending in the House shall not be proceeded with.

(5) If the report of the Commission contains a

finding prima facie that the misbehaviour or incapacity

has been proved then, the motion referred to in article

97(2) of the Constitution shall, together with the report of

the Commission, be taken up for consideration by the

House.

(6) If upon consideration by the House, it is satisfied

that the misbehaviour or incapacity has been proved and if

the motion is adopted by the House in accordance with the

provisions of article 91(5) or 91A(5) of the Constitution

then the misbehaviour or inability of the holder of the

office to perform the functions of office shall be deemed

to have been proved and an address praying for the

removal of the holder of the office shall be presented to

the President by the House in the same session in which

the motion has been adopted.

(7) Proceedings by the Commission under this article

shall be held in camera. The member of the House

presenting the motion and the holder of the office whose

conduct is being investigated shall have a right to be

present during the whole process, to produce witnesses in

support of the charges set in the motion or in defence, and

to be assisted by any advocate or legal procurator.

(8) The provisions of article 10 shall apply mutatis

mutandis where it is alleged that the holder of the office is

unable to perform the functions of office on the grounds

of infirmity of body or mind.".

Passed by the House of Representatives at Sitting No. 366 of the

29th July, 2020.

CLAUDETTE BUTTIGIEG

Deputy Speaker

RAYMOND SCICLUNA

Clerk of the House of Representatives

€0.72