MCT1002 – Introduction to Law

Joshua Chircop LL.B. (Hons) 18/12/2013 19:03:00

Section A – Semester 1 – 3 questions to choose 1

50 marks

Legal Skills
 Originality
 Literature review
 Plagiarism
Malta’s Legal System
 Maltese Legal System
 Legislation - how a law comes into being white paper, blank paper

1
Introduction to Law – Prof. Kevin Aquilina Joshua Chircop

Legal Skills and Legal Writing

Primary laws are made by Parliament and also called codes, ordinances
and acts of parliament. Subsidiary/Secondary laws are however not made
by parliament, yet made by a person or a body of persons (usually a
public officer or a Minister), e.g. MEPA.

Primary Law

This includes an act of parliament, which is the name given to a law from
1964 onwards. Having a self-government in Malta means that we have
had cases of acts of parliament, with those laws being passed by the
legislative assembly. During colonial times, laws were not called acts of
parliament but ordinances (stopped being made in 1964 when we were no
longer a British colony). There are also codes. They are a different type of
laws from acts and ordinances as it is a substantial law. Since 1885 –
1888 we have not had a code enacted by parliament.

Subsidiary Laws

Subsidiary legislation is not made by parliament. This means that it is

inferior to laws made in parliament as it is made by a minister and cannot
run counter to primary laws. This can be seen in the case by Louis F.
Cassar, who put forward a case against the Prime Minister (actio
popolaris against the Government). The Constitution states that if there is
any subsidiary law to the primarily law, then any person can go to court
to annul the subsidiary law. This involved the code of police laws referring
to the close season of hunting and trapping. The Prime Minister of the
time issued a statement establishing the closed season (yet there was
already a primary law stating this). In the Statement issued by the Prime
Minister, closed season on hunting and trapping was given more time
than the police laws stated. This environmentalist thus took him to court
to annul the legal notice as it did not make sense against the already
existing primary law.

Another case is of Lawrence Pullicino who was indicted for committing

homicide (1980's). The Criminal Code had a provision that held that if a

1
crime involves life imprisonment in such a case there is no bail. Pullicino
brought it before the Criminal Court, who found that it indeed was a
breach of human rights to keep a suspect without bail.

Is there a hierarchy of laws?

Primary laws are subdivided between the first subdivision between the
Constitution of Malta and other legislation. Article 6 says that if there is a
confusion between the Constitution and other laws the Constitution takes
preference. Moreover there is an article which says that the next three
laws which are superior to other legislation: the EU Convention Act
(Chapter 319 of the laws of Malta), the European Union Act (Chapter 360
of the laws of Malta) and the Diplomatic Privileges Act (CH191). If we
were to place the laws in a hierarchal position, the Constitution comes
first, these three come second and third come all other primary legislation
(523 laws). On the fourth step come the subsidiary laws. Secondary
legislation is inferior to primary legislation.

So we said that primary law comes in Codes, Acts and Ordinances.

Subsidiary laws can be found in mostly regulations (in regulating the
procedure of a particular body you use rules of court), rules, orders
(usually made by the PM) and by-laws (Local councils make use of by-
laws (made by the minister involved)) and also schemes (essentially
maps of all the towns and villages of Malta)-no longer in us because its
part of local law, warrants (such as the Financial, Administration and
Audit Act which empowers the finance minister to issue a warrant under
his signature).

How is law made?

Before it is made, government might decide to carry out a consultation

process. For example, in September ’12, Minister Tonio Borg launched
two white papers: a law to establish a parliamentary service and a
commissioner to deal with the ethics of the codes of parliament. It is not
a law but just a discussion document which eventually will lead to a law.

2
The next step would be to present the motion in parliament. Once he has
presented the motion the speaker sees who would want to second the
motion.

The debate cannot take place until the bill is published in the government
gazette. Once it takes place, a second reading follows. The minister or MP
introduces the bill and he explains what it is about. The MPs have the
opportunity to comment about it. Normally at the first stage no vote is
taken but at the second reading because it is a very important part of the
legislative process. This is were a vote is taken on the principle of the bill.
In parliament, it is read entirely in both English and Maltese. After all the
details are discussed (clause 1 to the last one), the next step is to move
to the third reading. Nothing usually happens here, typos and errors are
arranged. The speaker must sign the law and submit it to the President of
Malta for his assent. The Constitution says that he must do so in writing
without delay.

We shall address the issue of state law: the decision of courts and
tribunals. Courts are always presided by judges or magistrates,
however, tribunals can be decided either by the judicial or lay people.
Tribunals could be presided by other people with technical knowledge.
These courts and tribunals generate decisions which have a persuasive
authority, albeit Malta does not follow the doctrine of precedent. Hence if
a court does not want to follow these decisions, valid reasons must be
give. All the judgments since 2002 are available on the Ministry of Justice
Website. Yet, when earlier cases are concerned, a selection of these cases
(from 1945 onwards) is published on the website. Also a number of
judges have published texts of judgments or summaries in the English
language. Emphasis on the English language is put in the prior statement
since any judgment prior to 1995 was in Italian. When everything fails,
the only way to find case law is going to the court archives.

Custom

The bulk of law is written found in legislation but it is not only written.
Essentially custom is a habit or a usage which everyone experiences.

3
International Treaties: e.g. Universal Declaration of Human Rights

Regional Treaties: the world is divided into a number of regions; Malta

is both part of the Mediterranean and Europe; both of which have
produced a number of regional conventions binding Malta.

4
 Legal Skills
Originality Joshua Chircop

Originality is difficult to achieve because it distinguishes works from

previous works on the subject. Although there is no universally accepted
definition for originality, many agree it is defined by its subjective
element. Originality is distinguished by the ability to think independently
and creatively. It distinguishes works from mediocre or poor works.

The Elements Satisfying the Criterion of Originality

1. Empirical work that has not been done before

For e.g., conducting an interview and applying findings to research. An
assignment can be written can be written from a theoretical approach,
or from a practical approach, or clinical in cases of medical or
psychological studies.

2. Synthesis of things that have not been put together before

If multiple authors have given their opinion on a subject, try to extract
the common grounds from all of them, or extract differences. One
author may stress of particular point, while another will stress a
different point. However, it must be more than a compilation because
there is analysis of what has been written before. Your work must give
opinions stating agreement or disagreement and take an active role in
commenting upon the law in question.

3. Make a new interpretation of someone else’s material or ideas

This is very common in literature, philosophy and the arts. You try to
determine the meaning of a particular passage, painting etc. You can
try to extrapolate author's thoughts from his own works.

4. You do something in this country that has only been done

elsewhere or abroad
If something has been done abroad and is not original if it is
reproduced in Malta, then it is considered to be original. One must take
into account the question of copyright, plagiarism and collusion.

5. You take an existing technique and apply it to a new area

Our courts often apply existing techniques to new branches of the law.
Sometimes, they have to come up with their own judgments. Basically,

1
 they applied what we call in Prolegomena, the doctrine of analogy. If
there is a similar situation in a different area of law, then you apply it
to another section. For e.g., if in law of civil procedure there is an
institute of res judicata (a thing already decided), where A wins a case
in court, and there is an appeal and A wins again, 10 years later that
judgment cannot be reopened because it is final and conclusive.
Therefore the court take the institute and applies it to an existing area
of law.

6. You work across disciplines using different methodologies

The advantage of law is that it is a subject that can be studied with
other disciplines, for e.g.;
 law and science, such as problems of climate change in the attempt to
meet modern climate problems with legislation and regulations;
 comparative law, where we compare and contrast laws of different
countries;
 law and anthropology studying man’s bonds to social regulation and
law.

7. Examining topics that people in you discipline have not looked

into
It may be that you are the first person writing about said subject, for
e.g. when gaming law was introduced. All students who wrote about
this in their thesis were essentially analyzing a new topic which had
not been looked into before. The law keeps evolving with new laws
from time to time and syllabi need to be updated. For e.g., when Profs.
David Attard wrote his work Law of the Sea, he was examining the
Exclusive Economic Zone in International Law, made it original as no
one had written about it before. What is novel in such works is that
they are discussing an area of the law which has not been the subject
of thorough review.

8. You test existing knowledge in an original way

The knowledge already exists but the manner of testing is original.
Whilst writing on a subject which has been discussed for quite some
time in existing literature, e.g. death penalty, instead of studying from
the point of view of historical legislation or comparative law, or from a
Criminal Law point of view, one decides to study this from human

2
 rights point of view. Although existing knowledge is being discussed, it
is being examined from an original point of view.

9. You add to knowledge in a way that has now been done before
The advantage of law is that it can be an interdisciplinary subject, and
so you can study it from different perspectives. For e.g., comparative
law.

10. You write a new piece of information for the first time
e.g. Melita Historica by Judge Andrea Camilleri was innovative in its
field and there were no studies about this issue before.

11. You give a good exposition of someone else’s idea.

You can come across a provision in the law which is not clear and look
up how texts and writers have interpreted that provision. Therefore
they are giving a good exposition on someone else's idea. If the law is
ambiguous, the courts can be seen to be giving a good exposition in
cases where there is a lacuna in the law.

12. You continue an original piece of work

For e.g. Storja ta' Malta – 2 volume unfinished work. Somebody
continued this work – Prof Henry Frendo published this volume
covering the British period until the 19th Century. He was original
because he wrote something which had not been written before.
Continuing original piece of work which had been begun by another
author.

What would an examiner be looking for in work related to exams?

He would want to see whether the student has managed to grasp the
scale of the work, to produce a reader friendly writing and provide a
coherent argument. If one goes into extreme detail, one might miss the
subject of the assignment so there one has to elaborate more on the
principle rather than on the detail. Sometimes a question can ask one to
discuss detail rather than principle, for e.g., a provision from the law,
such as Art. 6 of the Constitution, asking for details on why the
Constitution is supreme, then one must go through the Constitution and

3
find all principles detailing why this is so. Examiner will be looking to see
whether student has grasped exact question being asked.

To produce a user friendly writing: use headings to show how one

part of the assignment connects to the next flow of thought. This applies
also to writing an examination script. Make use of colours in powerpoint
presentations. When writing an assignment can make it aesthetically
appealing by using headings.

Writing a coherent argument – should not have inconsistencies in writings

Student should be well versed in literature of the subject, should quote

authority, articles from journals, case law read. - that shows that the
student has done independent research and is well read and versed in the
subject. You have to be familiar with major and leading readings in the
area you are writing about. The style should be easy to follow and the
student should have a good command of the English language and of
legal terminology.

Students should also identify a lacuna and how it can be addressed –

either by means of an amendment to the law, legal notice, which can be
made under the parent act. For e.g. while neutrality is a legal concept,
non-alignment is a political one, not legal and so a definition will not be
found in a book of law. The Interpretation Act can be amended and put in
a definition of non-alignment. This is possible to do article 124(12) of the
Constitution, it says that if there is a word not defined in Constitution
then it can be defined through Interpretation act. Government can decide
to change the meaning of words e.g. neutrality and then the court is
bound by that definition.

An examiner will also look at student's writing skills – are they pedantic?

4
Writing A Literature Review Joshua Chircop

The Variable Definitions of a Literature Review

The literature review essentially can be defined in different ways like

originality. Various authors provide different examples.

Definition 1: interpretation and synthesis of published research

This an interpretation and synthesis of published work. It

summarises doctrinal contribution by various legal scholars and the
schools of thought they represent. Essentially this is a theoretical
approach to a particular topic. If tackling this, look at various schools of
thought that exist and how they have in turn defined justice, for e.g.
Start from Aristotle and move on through time. On one hand, it could be
a historical approach to the definition of justice, or, instead of looking at it
from a historical perspective, one can look at it from a philosophical
perspective; e.g. how the schools of thought defined justice, such as the
natural law school, the liberalist, the feminists, the Marxists, the
Utilitarians etc. Criticise works both from the works of other schools of
thought and ones own viewpoint.

Authors are writing within a specific context, a book written 20 years ago
is completely outdated because many laws have changed and new cases
have taken place. Thus, books must be read from the point of view of
today looking back at the situation of when it was written. The same goes
with law, it is not interpreted as it should have been 20 years ago but as
it understood today. There are schools which do not agree with this
theory.

Definition 2: a research project in its own right

For example, law commissions, e.g. in Commonwealth Countries. Their

literature review would consist of a whole report, which is essentially
literature review, when in our case it would be a law review. It is a whole
report consisting of multiple chapters, each one being the position at law
of a particular state with regards to the topic of the law. For e.g., the
Australian law commission has produced research on Sedition, and
essentially if you read it, it is a literature review on the major works that

1
have been written on Sedition. Those states which, although have not
repealed their seditious legislation, have not made use of said legislation,
as in the UK, for 200 years and so are not resorted to. The whole report is
in fact a literature review in its own right.

Sometimes a literature review constitutes a research project in its own

right. For e.g., an assignment about the devolution of Roman Law.
Research papers are subsequently developed into reports i.e. for e.g. how
one state could adapt its laws to cater for needs. Websites of Law
Commissions are useful for research.

Definition 3: a task that continues throughout the duration of the

written work and shows how the problem under investigation
refers to previous research. (in all probability, assignments fall
into this latter category).

A literature review need not necessarily be limited to one chapter of a

written work but can be ongoing. For e.g. the law may devote a chapter
per offence; and crimes such as treason and sedition, in Maltese Law, are
not derived from one source but from English, Italian and French Criminal
Law. They are discussed, each and every provision in a single chapter.
However, the law literature review will be specific to each chapter. For
e.g. Art. 56 of the Criminal Code deals with Insurrection or Coup d'Etat.
The provision originates primarily from English Common Law because
when the Criminal Code of Malta was in draft form, it was given to a
Scotsman, Andrew Jameson, for comment, and he proposed many
positions coming from English Common Law. Many of his suggestions
were taken on board during the meetings of the Council of Government.

As we said, one must show how the problem under investigation refers to
previous research. What is new in one's contribution? A literature review
involves showing what others have written, but what are you adding to
their work? Here arises the question of originality; what distinguishes
one's writings from those of others? Find something which authors in a
literature review did not go into, even though there could be no changes
in case law, there may be a need to advocate certain changes in the law.
For e.g. once amendments of a white paper/bill are accepted, it does not
mean that they will necessarily be enacted the way they have been

2
proposed, that means that if one is writing an assignment and takes on or
considers these amendments, the probability is that no one else will have
done so.

The Advantages of a Literature Review

1. It ensures that one is up to date with the latest literature on

the subject. If you are writing a literature review, essentially you
have to go through all the writings of a particular area of law on which
you are writing. However, it is important to have a background in
several reviews and not simply one. If one was to rely solely on the
Mamo Notes written by Sir Anthony Mamo research would be
incomplete, because it did not take on board the developments
occurring in the past few years. The first advantage therefore means
that one must be up to date with the literature written about a
particular topic. If one quotes Mamo exclusively it shows that one's
knowledge has a gap the same way that a literature review is
incomplete if you are not up to date.

2. It gives one ideas as to how one can structure one's work or

assignment. In the case of Criminal Law, for e.g., the Mamo Notes
takes a particular provision and analyses the constitutive elements of
that particular provision. One may:
 analyse the use of certain words such as “whosoever”;
 note the dissecting of a particular provision of the law and structure an
assignment accordingly;
 write about sections not tackled by Mamo, but may use his
methodology without in any way copying what he has stated because
he would not have written on this new offence; and
 use sub-headings, which makes it easier to read.

3. It ensures you do not repeat what other authors have written;

avoiding plagiarism, thus it makes your work original. If one
repeats only what others have said, it means that there really is
nothing new to be said, but is only a compilations of laws, judgments
or statements of other authors. This can form the first part of the
literature review, but must transcend this point and create one's own
version or point of view. It is good to quote but don’t stop there. Go

3
 beyond and come up with your own ideas

4. It gives one a better command of the subject one is writing

about. Once one has read all these authors there may be difficulties in
arriving at an interpretation of a particular provision – can look up a
court judgment and find interpretation. Even if one does not agree
with it, at least there is some authoritative statement on that
provision. If one disagrees with the judgment must give a reason for
such disagreement – the reason must also be well grounded.

5. It makes your work original, once, in the following parts of

your assignment, you come up with your own views and
interpretation of the law. After one does a literature review, the
first part of the assignment is important, but the second part is more
important – where one conceives his own ideas and interpretation of
the law.

6. It makes one's assignment more readable, showing that one

has done in depth research. What distinguished tertiary from
secondary students? In depth research. Not relying only on what the
lecturer is saying in class (they will not have the opportunity to go into
much detail) so lectures have to be supplemented (own research has
to be conducted). Also mainly working alone and doing own research
(much work has to be done alone rather than relying on the lecturer
for the information in question) – independent research carried out by
oneself. Have to determine which sources should be read/ignored.

4
The Aim of a Literature Review

It gives an overview of the main issues involved. (in depth would be

a thesis). Grasp the theme one is writing upon, secondly one can select
some of these main issues for one's study. In an assignment of
2500/3000 words, cannot go into such depth as one would if writing a
thesis of 60000+ words. But it does enable one to select some main
issues written about in assignment. In introduction (of assignment)
should mention that the rendering of particular subject is not a particular
one but have left out certain aspects.

Another purpose of a literature review is to summarise other peoples

works. If you go onto the UOM website, there is one called Law
Commission: find research papers, issued papers, reports etc. Will find
that before a law commission embarks on legislative proposals it first
conducts a report to find what the position of the law on a particular
subject is. The same exercise is repeated for numerous states. The next
report will analyse this report and then provides suggestions –
summarising existing laws in other jurisdictions as well as that in Malta.

Discussing the works and opinions of other people – doctrinal –

various courts coming up with diverse interpretation. E.g. Constitutional
court – conflicting judgements on mandatory arbitration – is it in breach
of right to fair trial or not? End result is uncertainty of the law. This is
perhaps the worst thing that one can have in a judicial system - if you do
not know what the law is, then how can you comply with it “ignorantia
juris neminen excusat” - not a question of ignorance though, but of
having conflicting interpretations of one and the same provision
determined by the same court which happens to be the highest court in
the Maltese islands.

A literature review also allows one to provide a context for one's own
work – can contextualise one's contribution/innovation within existing
literature. E.g. Finnis 'On the Incoherence of Legal Positivism'.

Another purpose is that it allows one to identify gaps in existing

legal literature. Lacuna – Latin term for gaps. Means law not regulating

5
particular aspects, e.g., in the criminal field, a criminal may get off scot
free. In the civil field, it may mean that one is not being afforded a
certain right, e.g., European Directive not transposed by government into
Maltese law – have a right in terms of European law but not in terms of
Maltese law.

Literature review also exists to develop an understanding of theory

and method. Theory and method – both thins have to go together – can
use a wrong method to address a question which one may be
investigating – may be, for e.g., that one is carrying out a questionnaire
and asking 20 people what they think about a new law about to be
enacted. May be that the method of research is faulty (e.g. 20 people too
small for purposes of research). The margins of error which such methods
would produce maybe 25% (basically ¼ of answers cannot be relied upon
– method useless and unscientific).

The Questions a Literature Review

1. What were the research aims and objectives?

When replying to an assignment, the research question is straightforward

– subject question. Handed the research question and must write about
it. One must ask oneself, what are the aims/objectives? Have to see that
the outcome is listed – eg) going through provisions of the Constitution
which show that our system is a parliamentary democracy rather than a
presidential system.

2. What Approaches/Method strategies were used?

How was subject approached? Solely with the use of literature review
without undertaking empirical research? A literature review has to have
link to subject – cannot go out of point.

3. What will my contribution be?

Not just simply summarising but have to come up with something new.
What are the gaps in my research – may come across a number of

6
difficulties but it is important to state these difficulties in order to write
your assignment. Should state them clearly in the introduction.

7
Plagiarism Joshua Chircop

The software will tell us from where the assignment is copied. E.g. a
student in the 6th year of the course. For some reason he did not write
the thesis – he subcontracted it. He appeared for the board and admitted
and obviously he was found to have plagiarized and was asked to write it
afresh on a different subject. Plagiarism is considered to be a very serious
offence (essentially it is a case of copying). It is defined as the "wrongful
appropriation" and "purloining and publication" of another author's
"language, thoughts, ideas, or expressions," and the representation of
them as one's own original work.

Sometimes, one copies unintentionally – you do not have the mens rea –
you are not doing it willfully as the Criminal Code would have it. However
even in this case, as a case of negligence still it is an offence.

Normally for the first time offenders – sometimes you can get a double
punishment and a fine. If you repeat the same offence the punishment
will be increased – on the 3rd case normally the university expels the
students and is not re-admitted in any faculty for a period of time.

Has work been published or not? For example, the majority of LLD thesis
are available but not published normally. There was a particular notary
who was taking extracts from LLD thesis and publishing them under his
own name in the Sunday Times – he decided to write an article on
occupational health and safety – Mr Justice Zammit McKean had noted
that part of this was published in the Sunday Times his thesis was
published under the other name – the author of the article admitted it
was plagiarized – it ended there.

Apart therefore from disciplinary cases there can also be civil cases. A
student submitted as his chapter an introduction from the supervisor’s
book.

1
EDUCATION ACT (CAP. 327)
University Assessment Regulations, 2009

The definition of plagiarism is taken from this legal notice.

39. Students shall not … in any form of Assessment … engage in plagiarism - defined
as the unacknowledged use, as one’s own, of work of another person, whether or not
such work has been published, and as may be further elaborated in Faculty or
University guidelines;

40. When students are alleged to have committed a breach of any of the provisions in
regulation 39, a report shall be made in writing to the Registrar, and such reports shall
be referred to the Assessment Disciplinary Board appointed by Senate.

41 (1) Cases of alleged plagiarism in work submitted for Study-Units to which less
than 8 credits are assigned shall be investigated by a Faculty Assessment Disciplinary
Board, composed of the Dean of the Faculty or his delegate, the Head of Department
or his delegate and the lecturer responsible for the Unit.

(2) When plagiarism is established to have occurred, the Faculty Assessment

Disciplinary Board shall, in the case of plagiarism deemed to be minor, being the
student’s first offence:

(a) issue an oral or written reprimand; and/or

(b) reduce the mark of the Assessment or of the relevant Assessment

component if applicable down to, and including, the mark of zero with or
without the possibility of reassessment.

(3) In the case of plagiarism deemed to be major, or if minor, being the student’s
second or subsequent offence, the Faculty Assessment Disciplinary Board shall
refer the case to the University Assessment Disciplinary Board.

(4) If plagiarism is detected after the result of a Study-Unit has been published or after
an award has been conferred, the University Assessment Disciplinary Board may
direct that the result of the Study-Unit be annulled and/or that the award be
withdrawn.

(5) The University Assessment Disciplinary Board may give direction and more
guidelines to Faculty Assessment Disciplinary Boards on procedures to be used in

2
such cases.

Self-plagiarism: If you submit your work online (already published) and

then submit it to the university the software will pick it up. Links from
where the copy is taken is printed by the system and shown to the
student.

Citation and Interpretation

1. (1) These regulations shall be cited as the University Assessment Regulations,

2009.

(2) In these Regulations, unless the context otherwise requires:

“Assessment” means all forms of assessment that are used to award a mark and/or
grade that contributes towards the award of any University qualification. The method
of assessment shall be as prescribed in the Study-Unit description, or in the
regulations or bye-laws of a Non-Modular Course, and may include written
supervised Examinations, oral Examinations, home assignments, whether short or
long essays, dissertations or theses, clinical or practical Examinations, portfolios,
projects, fieldwork, case studies, logbooks, continuous assessment of a placement, and
any other method of assessment approved by Senate;

“Board” means the Board that is directly responsible to Senate for offering a
programme of study;

“Course” means a programme of study leading to a University award; it may consist

of one programme of study or may include a number of programmes of study in
particular areas of study;

“Dean” means the dean of a faculty or the director of an institute or a centre or of any
other academic entity that is directly responsible to Senate for offering a Course or
part thereof;

“Examination” means any assessment, whether written, oral, practical, clinical, or

similar, held under supervision on a set date, at a set time and venue;

“External Examiner” means a senior academic who is an expert in the area of study
being examined and who is not affiliated to the University;

“Faculty” means any faculty or institute or centre or any other academic entity that is

3
directly responsible to Senate for offering a Course or part thereof;

“Head of Department” means the head of a department or the co-ordinator of a

division or a Course or an area of study, as appropriate;

“Non-Modular Course” means a course not organised on the Study- Unit/credit

system;

“Study-Unit / Unit” means a part of a programme of study carried out upon a syllabus
approved by Senate, to which a specified number of ECTS credits is assigned, and
which is capable of separate assessment; a Study-Unit may take the form of a series of
lectures, seminars, tutorials, practical or clinical sessions, field placements, projects,
research work, dissertations, private study, or a combination of such work, or any
other method of teaching; for the purpose of these regulations the term “Study-Unit”
refers also to any part of the syllabus which requires separate assessment in Non-
Modular Courses; and

“Study-Unit Co-ordinator” is appointed for Units taught by more than one lecturer and
means the lecturer responsible for overseeing the Unit and its assessment; normally a
Study-Unit Co-ordinator is the lecturer who delivers the greater part of a Unit or,
when teaching is equally distributed amongst various lecturers, the most senior
lecturer.

(3) Any term used in these regulations which is not defined in paragraph (2) of this
regulation shall, if necessary, be taken to mean as defined in the General Regulations
for University Undergraduate Awards, 2004, published as Legal Notice 127 of 2004.

Applicability

2. These Regulations shall be applicable with effect from 1 October 2009 for courses
in progress in 2009/2010 and later.

N.B. To use another’s production without crediting the source also is

plagiarism. It could be you have paraphrased what a particular author has
stated but the idea is not yours – still you have to give the source.

Furthermore, in the footnote you have to give the exact reference.

Plagiarism is an act of fraud – it involves stealing someone’s work and
lying about it. All of the following are considered plagiarism:

4
 Turning in someone’s else’s work as your own.

 Copying words or ideas from someone else without giving due credit.

 Giving incorrect information about the source of a quotation (e.g.
wrong page).

 There are specific rules of quotation, you may lose marks if you do not
follow them.
 Changing words but copying the sentence structure without giving
credit.
 Copying so many words or ideas from a source that it makes up the
majority of your work, whether you give credit or not. 

 Passing work as your own.

You will get zero marks for the work. The Senate has the power to expel a
person on the basis of plagiarism.

Lawyer’s ethics:
 Honesty and integrity
The public perception is that lawyers do not always follow these
standards. If there is a doubt you are not following these standards. You
must use footnotes.

“But I didn’t know that” – this is not acceptable. Ignorance of the law
is not a justification.

“I couldn’t write it better” – again this is not a justification. If English

skills are not articulated, it is not a justification.

You cannot have a whole assignment of quotes because there is nothing

original in it. You have to keep in mind that there should be an element of
originality. Hence, avoid lengthy quotes of others’ work.

Collusion

Collusion 1 : The students use the same source and therefore they write
the same thing. One copy’s an essay from the other – or they do it
together and use the same content.

1
Collusion is an agreement between two or more parties, sometimes illegal and
therefore secretive, to limit open competition by deceiving, misleading, or

5
Examples of Collusion:

1. Do not share work. Students writing assignments. One in library –

she left her desk and she alleged that another student inserted pen
drive. 100% identical. They came before the board. They accused each
other. Hence, do not share work until it has been submitted.

2. Cases of group work – one writes introduction, another writes the

body, and another the conclusion. The software identified that the
body of the assignment is 100% plagiarized. We do not know who has
written which part and when they come before the board they do not
disclose to the board. Thus all 3’s mark cancelled of assignment and of
study unit – 250 Euro fined for first offence.

Someone guilty of plagiarism is guilty of fraud and can be liable to

cancellation of study-units, expulsion, and up to four years of
imprisonment.

Quoting and Citing is the only way to quote others work without being
plagiarism. Your own ideas may often be more accurate or more
interesting than those of your sources – make sure the sources are
correct as this is not always correct. Citing sources shows the amount of
research you have done. Citing strengthens your work by lending outside
support to your ideas.

Registrar’s section: guidelines to avoid plagiarism

defrauding others of their legal rights, or to obtain an objective forbidden by law

typically by defrauding or gaining an unfair advantage.

6
The Maltese Legal System – Prof. Kevin Aquilina
Joshua Chircop

The Maltese Legal System as we know it today is the end product of the
various phases of its colonisation and its mixture with foreign (national)
law and other legal systems. Legal systems could compromise a number
of states that have one legal which is common to all, like Common Law.

The Civil Law is a legal system which has penetrated in various

continental systems (e.g. Belgium, Italian, Spanish, French). These
national states are inspired by the Civil Law legal system. This system
derives historically from Roman Law. Thus we think of Civil Law as Roman
Law developed with time over the years. Canon Law is very much a part
of the Civil Law legal system. Canon Law owes its existence to the Civil
Law legal system going back 2500 years. Civil Law is considered one of
the major legal systems in the world.

Malta, up till the advent of Napoleon in 1798, was based on purely Civil
Law, essentially therefore Roman Law. When Napoleon came to Malta, he
tried to introduce law from the French Civil Code, a continental
jurisdiction. After their departure, in 1800, Malta was introduced to the
English Common Law system.

In the UK, when the Common Law is mentioned, they refer to judge-
made law, not statutes enacted by parliament. They have the doctrine of
stare decisis or the doctrine of precedent. Up till the 1960s, a judgment
given by the House of Lords (highest court in the UK up until 2005) could
not be changed, not even by the House of Lords itself. The Court of
Appeal, the King’s Bench, and Magistrates must follow the doctrine of
precedent. We have not inherited that Common Law from the English. We
have inherited British statutory law, law enacted by the British
Parliament.

Basically between 1800-2004 we had a mixed legal system between civil

(which decreased) and common (which increased) law. Between 1972 and
2004, we added a major source, 80,000 pages of European Union law.

Thus these developments have resulted in our law having three sources:
 Civil Law
 Common Law

1
 EU law (& Public International Law)

Since 1964, there is another element besides those mentioned, Maltese

law promulgated by the Maltese Parliament, an autonomous law.

Throughout her history, Malta was occupied by the most important

empires in the world. Turkey was one of the few empires that failed to
conquer us. The Phoenicians, Romans, Arabs, Knights and English all
passed through our islands and left their mark on our legal system.

We can split this into 9 periods:

 Roman Malta 218BC – 370AD
 Arab Malta 870 AD – 1090 AD
 Norman Malta 1090 AD – 1530 AD
 Order of St. John 1530 AD – 1798 AD
 French Malta 1798 – 1800
 British Malta 1800 – 1964
 Independent Malta 1964 – 2004
 European Unionised Malta 2004 – present
 Revival of codification 2009 AD – present

A particular group of anthropologists settled in Morocco in the Sefrou

province. They tried to study the religious courts in Morocco in the 1970s.
At that time these religious courts were presided over the Qadi. Although
there were single court systems for civil matters, family matters were
adjudicated in matters of Sharia. Clifford Geertz assumes that law itself is
best studied if considered as being essentially part of the way we
imagined the world. He argued that law has to be looked at in exactly the
same way one looks at a poem, as a particular product of human
imagination which shapes the way people who look at it think about
reality.

Maltese law is divided into:

 Public law involves the State. It is comprised of Constitutional law,
administrative law, employment law, social law, education law,
Environmental Law, media law, communications law, etc. It is quite a
vast subject. This mostly derives from British statutory legislation. In

2
 the Criminal Law there are both; the law of evidence is purely British,
a number of offences with regards to sedition are also English.

 Private law is mostly based on continental law; but banking,

company, finance, maritime law are based on the British system.
However Commercial and Civil Law are mostly based on the
continental law although they have Common Law elements.

Roman Law has always been an important source of the Maltese system.
The Civil Code is an example of this, because it has not been filtered by
the Common Law except for the institute of adoption. Nevertheless our
Civil Law has been begun to be contaminated by non-Civil Law like
divorce law and law of trust.

The Influences of Canon Law

It isn’t simply the law of the Roman Catholic Apostolic Church, because
that doesn’t really apply to the State, but there are those that do. It is a
force which shaped all society; law and cleric alike. Canon Law is not
restricted to the code of Canon Law but it has had an influence on Maltese
society. The highest law of the land, the Constitution of Malta, is
influenced by the 1917 Code of Canon Law. Our Constitution says our
religion is the Roman Catholic Apostolic Church, it says it must be
provided in all state schools as part of secondary compulsory education.
Not only has the State adopted religion but it has been adopted by the
Constitution. No such treatment is afforded in the Constitution of Malta to
other religions.

Those who do not want to be instructed or form part of another religion

are not educated in their religion or in a non-religious subject in the time
allotted. All teachers that teach religion must be appointed by the
Archbishop in line with Canon Law provisions. Title IV of the Criminal
Code deals with crimes against the religious sentiment. Particularly, Art.
163 deals with vilification of the Roman Catholic Apostolic Religion and
Art. 164 deals with vilification of other religions. On the application of
Canon Law to Malta, there is quite an amount of case law in the Court of
Appeal.

3
Prior to the Marriage Act (1975), only church marriages, through the
Church, were permitted in Malta. The registration in the Court of Appeal
of judgments is delivered by the Ecclesiastical Tribunal. In terms of the
Marriage Act, the Catholic Marriage, is regulated by the Code of Canon
Law and then there is the Civil (non-Catholic) marriage, regulated by the
Marriage Act, independent of the Church. According to the Marriage Act, if
you happen to be married according to the Catholic Church, you normally
go to the Ecclesiastical Tribunal.

In Malta, the Ecclesiastical Tribunal may annul the institute of marriage.

The judgment of this tribunal has to be registered with the Court of
Appeal. This rule has it sources in Canon Law. Our law states that there
can be certain circumstances where the Court of Appeal might refuse
registration. The grounds for refusal are prescribed in the law. However,
the decision is not automatic, there has to be a process which follows the
judgment of the Ecclesiastical Tribunal. If the Court of Appeal registers,
the judgment of the Tribunal will be considered a judgment of the Maltese
Courts and can enforce it in the same way they enforce their own
judgments. However, if the annulment is not registered, it remains valid
at Canon Law, but is not a valid judgment at Maltese Law.

Thus, what is an ecclesiastical judgment is becoming part of the

enforcement of the court, a judgment that is not its own. The influences
of social teachings of the Church are, to an extent, engrained in our law.
Looking at euthanasia, cohabitation, IVF and abortion, Maltese law is very
much influenced by the Roman Catholic condition.

Public International Law

Public International Law is, primarily the law which regulates the
relationship between states, and, secondly the relationship between
states and international unions (UNESCO, WHO, The Council of Europe,
the EU). In Public International Law, the law comes into 5 types:

1. Conventions or Treaties which are mostly similar to the laws of a

national legislature.

4
 2. Customary International Law which is similar custom in national
law.
3. Ius Cogens is translated as a peremptory norm of International
Law. It is considered to be the highest form of International Law
(e.g. genocide).
4. Judicial Decisions e.g. those from the European Court of Justice
5. Writings of the texts

When George Borg Oliver became Prime Minister after Independence, one
of his first tasks as Maltese Prime Minister was to decide whether to
continue with the treaty arrangements which applied to Malta as extended
by the UK. Since 1964 till the present day Malta has ratified many
conventions, which have been included into Maltese law so as to be
effective. Here, we see the influence of Public International Law on
Maltese law. Our Constitution recognises the influence of Public
International Law because in Art. 65 it specifically states that when
enacting laws, Parliament must enact in conformity with generally
accepted principles of International Law. When an international
convention is incorporated into Maltese and you need to know how to
interpret the provisions of Maltese law one must look up the
Interpretation Act.

The Influence of European Law on Malta

Although you might think this is something which goes back, only to
2004, this is not the case. In fact, we have been using European Union
law prior to Malta entering into the EU, or even prior to Malta deciding to
join. A lot of Maltese law is in fact modeled on British law and the UK
itself became a member of the EEC in 1972. All those laws, which we
adopted from the United Kingdom from 1972, in reality, were already
compliant with EU law. To a certain extent, therefore, we can say that EU
law laid its foundations not in 2004, but in 1972. Of course, 2004
accelerated the process: between 1972 and 2004, prior to accession we
were not taking all British law into Maltese law but a few laws here and
there, all being EU compliant.

By means of example:

5
1991: Malta enacted a Broadcasting Act. This was modeled on the British
Act of the year before. This therefore means that our Act was already
compliant with EU law and therefore, much of its broadcasting legislation
of the EU was already found in Malta.

EU law has got the same origins of the Maltese legal system. In other
words, it is very much influenced by the Roman Law Civil Tradition, up
until 1972, the member states of the EEC were essentially Civil Law
countries. It was only afterwards that the UK and the Eastern and Central
European Countries joined. Hence the Common Law also came in, albeit
at a later stage, very much akin to the Maltese legal system.

However, it in itself has emerged as a legal tradition in its own. The EU

legal system has developed in its own right: EU law is undoubtedly the 3rd
source of Maltese law, basically from 1972 onwards.

Ignacio Castellucci says that EU law definitely reflected a third pattern

of mixity having been directly been developed over a relatively short time
as a mixed one affected by both major legal traditions.

Ivan Sammut holds that EU law evolved on a mixed family line. While,
as a system, it originated on a Civil Law ground through the original six
states, Common Law principles started leaving their mark following the
UK’s accession in 1972. EU law cannot be considered to be alien from the
Maltese legal system, it derives from sources from which the Maltese
system itself derives its existence.

Art 4(1) The Maltese European Union Act

There is also a provision, which says that if there is an inconsistency, a

conflict between a Maltese law and a European Union law, and then it is
the European Union law, which prevails. However, we must make an
important consideration: with such a conflict, when we say EU law will
prevail, there is one exception to this rule and this is the Constitution: if
there is a conflict between the EU law and the Constitution of Malta,
according to the Constitution, it is the Constitution which prevails upon EU
law, but even here we must make a provision:

6
Art. 65 – Parliament may makes laws which are, among other things, are
inconformity with EU law.

This therefore means that Maltese law has to be compliant with EU law,
although academically it can be discussed that in reality it is not supposed
to arise. It has to comply with Constitution, and given that provision, it
implies it is simultaneously compliant with EU law.

Hence the EU Act applies not to the Constitution in reality, but to all other
ordinary legislation. It is EU law that will prevail in this case in areas of
contradiction.

Hence, EU law can supersede Maltese law – that will be considered to be

null and void to the extent of the inconsistency. The consequence of all
this is that Maltese ordinary law when compared to EU law, has lost its
supremacy (not to the Constitution).

Whilst the Civil and Common Law have been voluntarily adopted by Malta,
out of choice it can do so, in the case of EU law, the situation is different.
It is no longer a question of Malta voluntarily adopting EU legislation
because Malta is bound to such an extent that EU law prevails over
Maltese ordinary law. Although we have 3 legal traditions influencing the
development of Maltese law, in reality there is also a hierarchy between
these 3 sources.

This does not only apply to Malta but all the 27 EU states – the rule is
consistent. Again we must clarify that we are referring to ordinary law,
and not the Constitution.

Ongoing influence of Common Law

We find that the Common Law that has influenced our system is not only
“English”, but also that which developed from Independence to date,
Malta being a member of the Commonwealth. A number of
commonwealth states have adopted English law.

7
This may give rise to Malta adopting Common Law not restricted to the
‘English Common Law’ as this spread in various of the commonwealth
countries. For instance, we might transplant “Australian Common Law”.
Although the Malta Arbitration Act is not influenced by the UK, it is in fact,
heavily influenced by New Zealand, in itself influenced by English
Common Law. Hence in reality we should not restrict ourselves only to
“English Common Law”.

Examples:

 The Freedom of Information Act 2012 is modeled upon the Act of

New Zealand. With regards to the similar vs. identical where it comes
to borrowing legislation from another country, in the case of the
Freedom of Information Act, it is similar but not identical. New
Zealand’s legislation is simple in comparison to the UK legislation and
method.

 Before the Freedom of Information Act was enacted we had Art. 637
of the Code Of Organization And Civil Procedure. What is
interesting to observe is that even this article was taken from foreign
law, the Australian Freedom of Information Act.

 The Ombudsman Act 1995 is taken from the New Zealand Act. We
did not take it from the UK, although they had one.

 The Income Tax Act is similar to that of Cyprus, a former colony

itself.

 The Public Administration Act is similar to the Australian Public

Service Act 1999. Again, it is inspired by the Common Law tradition,
but not the “English Common Law”.

What about the US Anglo-American Common Law? Wars apart, the US

has also taken on board English Common Law. We do have some
influences from the US, such as that of judicial review of legislation. This
is taken from the Constitution of the United States of America. We find
this in our Constitution, which, unlike the United Kingdom, allows our

8
Courts to declare certain laws null and void. Judicial review of legislation
may be distinguished from judicial review of an administrative action. The
latter is not taken from the US, but from the United Kingdom. The court is
reviewing the legality of the administrative decision.

The Environment Protection Act 1991, repealed in 2010 by the new

Environment and Planning Act – was inspired and modeled upon the
Canadian Act.

Regional Mediterranean Law

Insofar that Malta is concerned, we can say that we form part of two
regions: Europe and Mediterranean. When we speak about regional law,
we have more in mind the Mediterranean. Mediterranean Law does exist,
albeit not so elaborate. There are important laws in this region, which
have influenced Malta.

The United Nations Environment Programme (UNEP) has divided the

world into 13 different seas. Within the region of the Mediterranean Sea,
the member states come together every 2 years for a diplomatic
conference and they approve conventions and protocols (additions to the
conventions) and these apply to all member states of the Mediterranean –
what we would call regional law.

For e.g., the Convention for the Protection of the Marine Environment and
the Coastal Region of the Mediterranean, together with its 6 protocols.

Influence from Member States Individually

It can also happen that the influence on the Maltese legal system is not
only from the EU itself, but also from a member state of the EU itself.
When we had the controversy of the divorce bill, brought to the House by
Hon. Jeffrey Pullicino Orland and Hon. Evarist Bartolo, it was modeled on
the Irish model.

9
There can be instances of Malta taking legislation even from small states,
e.g., Cyprus as mentioned earlier, albeit the occurrence is negligible in
comparison, although one must not dismiss the ongoing possibility.

The Evolution of the Maltese Legal System:

9 different periods:
Legal History in the sense of which superpower-conquered Malta:

1. Roman Malta (218BC-870AD)

2. Arab Malta (870-1090)
3. Norman Malta (1090-1530)
4. Hospitaller Malta (1530-1798)
5. French Malta (1798-1800)
6. British Malta (1800-1964)
7. Independent Malta (1964-2004)
8. European Unionised Malta (2004-present)
9. Revival of Codification (2009)

1. Roman Malta (218BC-870AD)

We know that Malta was occupied by Rome in 218 BC and the law of
Rome was subsequently applied to Malta. there were those who enjoyed
Roman citizenship, because they were Roman settlers or rather Roman
citizens.

The Maltese had their own customs and the romans did not abolish them.
Thus the Maltese were governed by them. Roman Law was inapplicable to
the Maltese. Cicero states that the Maltese were given the appellation of
socii implying they enjoyed some form of participation in the rights of
citizenship. By 212 AD Roman citizenship was extended to the Maltese by
the Edict of Caracalla and so were regulated by the laws of Rome. To a
certain extent we are still regulated by the law of Rome, especially in the
Civil Law area, less so in Public law.

2. Arab Malta (870-1090)

10
In 870 AD, the Arabs like the Romans did not abrogate Maltese law but
respected it which meant that Maltese law could continue and survive.
Therefore, this comes to show that when a new colonizer comes in it does
not mean that they will change laws. As far as the Arab rule is concerned;
very little is known about it – however the Maltese language is said to be
a product of Maltese rule because it is a Semitic language.

3. Norman Malta (1090-1530)

In 1090 Count Roger conquered Malta, becoming part of the Empire of

Sicily. The laws that applied to Sicily automatically applied to Malta.
Canon Law also influenced our law, being such an influence on Roman
Law. during this period Roman Law reigned supreme as well through
Canon and Sicilian law. Malta was also governed by Sicilian maritime
usages.

4. Hospitaller Malta (1530-1798)

Under the Hospitallers, it is the first time law is made particularly for the
Maltese. In reality, the Hospitallers brought with them their own laws
from Rhodes. In the early part of their reign they had foreign law but it
was the law they had drawn up before coming to Malta. When arriving,
they continued their traditions. Thus it was the Knights themselves who
were in Malta, were making law for the Maltese. The big difference in this
period and previous is here, that law was for Malta. Roman Law applied
under the Knights because it was the law they knew. It was essentially a
religious order.

In 1681, Grandmaster Caraffa published his Prammatiche which was a

compilation of laws in the form of a code but not exactly in the form of a
code. It was more of a compilation of laws. The Code de Rohan is more of
a codification than it.

5. French Malta (1798-1800)

In 1798 Napoleon conquered Malta. Very little legislation was enacted

because they were under constant attack by the Maltese.

11
6. British Malta (1800-1964)

The British legal system had an influential effect on our system. In this
period practically all the law is English law with some exceptions. The five
principle codes are heavily influenced by Roman Law but other laws are
modeled on the English system. Thus they brought with them a process of
codification. English and continental law approach legislation differently.
The continental law drafter looks at principles whilst the English law
drafter looks at the detail. If for e.g. the Civil Code does not go much into
detail, whilst the Criminal Code does.

7. Independent Malta (1964-2004)

Our Constitution is not drafted by the Parliament of Malta, although by a

Maltese, it was passed by the British Parliament. It was an Appendix to
the Malta Independence Act of 1964, a UK legislation. It was given to us
and was not passed by the British. The vast majority of laws enacted
during this period were British. Very few Italian laws were used by the
Maltese legislator.

8. European Unionised Malta (2004-present)

In 1972 the UK became a member of the ECC (EU) and therefore it had to
transpose into its laws EU law. When we copied the British law, we were
transposing EU law as well. This meant Malta was taking onboard EU
legislation, not from 2004 but from 1972 because we were modeling our
legislation on there’s. Post 2004 we were in the EU and still had to change
our legal system. We are no longer a principally Civil Law country as we
were before British colonization and after the Independence being
significantly a Common Law country but are now a mixed system of
common, civil and EU law.

9. Revival of Codification (2009)

The idea was to try and reduce the 522 laws of Malta into 40 laws lead by
Hon. MP Franco Debono. This was an attempt towards the Italian system
which has 30 laws. It was also working on the codification of Criminal Law

12
because quite a number of statutes which are outside the code. It was
also working on Media Law. This will now continue.

CONCLUSION

The richness of the Maltese legal system is a product of its

diversity – it has taken the best of the major legal system of the
world, in theory at least. In this respect it is a rich legal system.

Malta has drawn upon different systems – becoming a coherent, well-

blended and diversified legal system. No legal system can actually
manage to remain pure. This is similar to linguistic impurity. Malta, has
however, managed to combine the various legal systems, whilst ensuring
that these diverse legal traditions, notwithstanding their differences and
peculiarities, work harmoniously together. Although we classify amongst
the mixed legal traditions, it is a homogenous one overall, despite
contradictions and fighting for predominance.

**

Kevin Aquilina’s Papers

 Journal of Civil Law Studies
 Id-Dritt: Non-autochthonous (home grown) Law Influences on the
Maltese Legal System
 The Maltese Legal System: A Strange Case of Dr Jekyl and Mr Hyde?

13
Legislation – Primary and Secondary (‘The Maltese
Legal System’ – Prof. David Attard) Joshua Chircop

Laws promulgated by Parliament, which is sovereign and legislatively

supreme, must no violate provisions of the Constitution and some other
specific laws. A law usually creates new norms of an imperative nature
and lays down general rules for the guidance of future conduct.

There are two main types of legislation that emanate from Parliament:
 Primary
 Subsidiary or delegated

Primary Legislation

Acts of Parliament

The structure of each Act of Parliament:

1. long title;
2. enacting formula (which lists inter alia the legislative history of the
Act);
3. short title;
4. commencement date;
5. interpretation article (defining certain key terms which appear
throughout the Act);
6. main provisions (usually marginal notes define what each particular
article regulates but in longer Acts groups may be divided into parts
with sub-headings);
7. administrative provisions;
8. transitional provisions (may cover the regulation of certain issues
from the old legal regime to the new one);
9. repealing provisions; and
10. schedules (may be used e.g. to lay out a long list of prohibited
substances – Dangerous Drugs Ordinance).

Malta’s Law Commission

It is made up of:
 a Chief Commissioner, and
 a body of commissioners.
1
 It has the power to alter the form and method of legislation.
 It may omit certain parts of the law, such as those which have
been expressly repealed or expired, for e.g.
 It may inter alia:
o consolidate various pieces of legislation,
o alter the order of articles,
o affect the consequent re-numbering thereof,
o add or amend a short title to any statute where the
Commission thinks it necessary to do so,
o supply or alter marginal notes, shorten or simplify the
phraseology of any statute,
o correct any grammatical or typographical mistakes,
o etc.

The Commission may not alter or amend the substance of the law, but it
may be necessary to make the revised edition more faithful to the original
text or remove any conflict between the Maltese and English text of any
law.

The Process of Law-Making

The Constitution explains that “Parliament may make laws for the peace,
order and good government of Malta”. The “power of Parliament to make
laws shall be exercised by bills passed by the HoR and assented to by the
President”. A “bill shall not become law unless it has been duly passed
and assented to in accordance with this Constitution.” Similar to the UK.

Laws are often initiated within government ministries, departments, or

statutory bodies. The legislation is initially drafted by the ministry,
department or statutory body concerned, and is then passed on to the
responsibility of the Minister to present the draft bill to Cabinet. It is only
then that the text is presented the draft bill to the HoR as a bill (abbozz).
The drafting of a bill is therefore largely a governmental affair even
though formally, the authority to enact such legislation lies with
Parliament. The possibility of a MP introducing a private member’s bill
2

Legislation – Primary and Secondary (‘The Maltese

Legal System’ – Prof. David Attard) Joshua Chircop
 must also be borne in mind, but this is not usually resorted to in practise
and such cases have been rare.

The actual presentation of a bill may be preceded by consultations,

debates or White Papers. A White Paper is a document which sets out the
main principles of a policy to which the government is committed. The
White Paper solicits public comment on such policy issues. These and
other factors contribute to the making of the law, since by the time a bill
reaches the HoR, the purpose of the bill has been aired, and generally
been accepted; very few bills presented to Parliament from 1961 onwards
have not been accepted as law. Furthermore, money bills requires the
President’s recommendation.

Once presented to Parliament, the bill passes through the following

stages.

1. First Reading
 Only involves authorisation by the House to publish a bill.
 Not a reading of the bill itself.
 It is the notice of the intention of the Minister or MP concerned.
 A vote is not normally taken.
 If a vote is taken it is when there is an opposition to the very
idea encapsulated in the title of the bill.
 If the vote is passed, then the bill is printed and published.

2. Second Reading
 Minister or MP piloting bill explains purpose and policy involved.
 The ensuing parliamentary debate is limited to the purpose of
the bill and the proposed means for giving it effect.
 A vote is taken on the bill, and if it survives, the bill passes on to
the next stage.

3. Committee Stage
 House resolves itself into a committee or the bill is forwarded to
the Committee for the Consideration of Bills and its provisions
are debated in detail and amendments may be made.
3

Legislation – Primary and Secondary (‘The Maltese

Legal System’ – Prof. David Attard) Joshua Chircop
 4. Report Stage
 The Bill is formally reported to the House by the chairman of the
committee.
 Amendments proposed by the committee are consider by the
House, which may also make further amendments.

5. Third Reading
 The bill is reviewed in its final form.
 The debate here is confined to minimal verbal amendments only.
 Should the bill be approved by the House, it is referred to the
President for his assent, after which assent it becomes law.

6. Publication
 The bill is to be published in the Malta Government Gazette and
shall not come into operation unless it has been so published.

It is not necessary for the bill to be brought entirely into force at once.
Indeed, certain provisions may be brought into force at a later date.
Furthermore, the law may be brought into force with retrospective effect
so as to be made applicable to events prior to its enactment.

Private Members’ Bills

The procedure followed for these to be enacted as laws is different. They

are not very common. It is possible for a member of Parliament, even if
he is not a member of the government, to introduce a bill on some matter
of importance to him or her. Should this attract the support of the HoR,
this bill may then be adopted by the government and form part of the
legislative programme. Otherwise, a private member may have difficulty
in being able to pass a bill through Parliament. Indeed, it is rare that such
bills become Acts since, after tackling governmental matters, there is
often not enough time left to debate private members’ bills. A glaring
exception is the private member’s bill on divorce presented by the Hon.
Jeffrey Pullicino Orlando, MP on the government side and co-sponsored by

Legislation – Primary and Secondary (‘The Maltese

Legal System’ – Prof. David Attard) Joshua Chircop
 the Hon. Evarist Bartolo, MP on the opposition side, and discussed in the
HoR in March 2011.

The private members’ bill was the subject of a referendum which took
place on 28 May 2011. 53% of the electorate voted in favour of the
introduction of divorce in Malta and 46% voted against. The question
asked: “Do you agree with the introduction of the option of divorce in the
case of a married couple who has been separated or has been living apart
for at least 4 years, and where there is no reasonable hope for
reconciliation between spouses, whilst adequate maintenance is
guaranteed and the children are protected?” The Bill was published on 17
June 2011. The law came into force on 1 October 2011.

Delegated or Subsidiary Legislation

The legislative supremacy of Parliament allows it to grant some other

person or body the authority to make subsidiary legislation , such as
regulations or orders having the force of law.
 Delegated because Parliament in effect delegates its law-making
power to another person or body
 Subsidiary because this legislation is subsidiary to the primary or
parent Act under which the authority is created.
As a rule, it should be state that the person or body to whom such
legislative authority has been delegated cannot further delegate this
authority to another body or person – delegatus non potest delegare.
This, however, is the prima facie rule since such authority may indeed
exist if expressly or impliedly permitted by the parent Act.

The need to enact so many laws meets with the difficulty of finding the
parliamentary time in which to do this. Many acts of Parliament today
restrict themselves to broad issues of principle and policy in the sense of
providing a framework law, while leaving the administrative details to
subordinate authorities, which are responsible for carrying the Act into
effect. Many laws therefore contain provisions empowering the Minister to
make regulations under the authority of the Parent Act.
5

Legislation – Primary and Secondary (‘The Maltese

Legal System’ – Prof. David Attard) Joshua Chircop
 Factors making delegated legislation a suitable alternative to
parliamentary law-making:
 Problems of lack of parliamentary time.
 Parliament is not always in session and its legislative procedures
are necessarily slow – it may happen that an emergency or
urgent situation arises which needs prompt regulation.
 Delegated legislation is more flexible and more speedily created,
and if it proves impracticable and unworkable it is easily
revoked.
 Many matters which fall to be regulated in today’s modern and
complex society are highly specialised and consequently are not
readily susceptible to being discussed in Parliament. Thus it is
preferable to be dealt with by the Minister responsible, since he
is advised by experts in that field.
 Subsidiary legislation is useful in providing for further regulation
which might be necessitated in view of future needs or difficulties
that are occasioned by the primary legislation, as it is impossible
for Parliament to foresee all such needs at the moment of
enacting the primary legislation.

Criticisms levelled against subsidiary law-making:

1. It goes against the strict interpretation of the separation of powers

doctrine because even though the power is delegated and authorised
by Parliament, effectively it amounts to legislating by executive.
However, this suggests the inadequacy of strict interpretation of the
separation of powers.

2. Laws are often passed in skeleton form leaving the details to be

regulated by means of delegated legislation. However, it is often the
detail that is of most immediate concern to the general public, which
could give rise to certain controversy, and which would have been
more adequately scrutinised by the more public elected legislation.

Legislation – Primary and Secondary (‘The Maltese

Legal System’ – Prof. David Attard) Joshua Chircop
 3. A preoccupation exists as to the available controls over such type of
legislation; parliamentary time does not allow full control of what its
delegates may make of this delegated power. However, this does exist
in the form of judicial review provided in Art.469A(1) of the Code of
Organisation and Civil Procedure through the Civil Court, First Hall, and
appealable through the Court of Appeal. It may enquire into the
validity of any administrative act or declare such act null, invalid or
without effect where such act is unconstitutional or ultra vires.

In the case Louis F. Cassar pro et noe. vs the Prime Minister et, the
Civil Court, First Hall, had decided that the PM could not make a
subsidiary law which went contrary to the parent act. In this case, the Pm
had issued regulations under the Code of Police Laws by which he had
reduced the closed season for hunting by 27 days. However, the term for
the closed season had already been established by the Code of Police
Laws. Hence, the Civil Court, First Hall, declared that the PM was not
authorised, by regulations, to change the closed season as established in
the Code of Police Laws. The court thus held these regulation to be ultra
vires the powers conferred upon the PM.

Legislation – Primary and Secondary (‘The Maltese

Legal System’ – Prof. David Attard) Joshua Chircop
1