ACT No. VIII of 1981 AN ACT further to amend the Code of Organization and Civil Proce-

I assent.

(L.S.)

ANTON BUTTIGIEG

President

13th March. 1981

ACT No. VIII of 1981

AN ACT further to amend the Code of Organization and Civil Proce-

dure, Capo 15.

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:-

(1) This Act may be cited as the Code of Organization and

Civil Procedure (Amendment) Act. 1981, and shall be read and con-

strued as one with the Code of Organization and Civil Procedure. here-

inafter referred to as "the principallaw' ~.

(2) Sections 4. 6, 7 and 8 of this Act shall come into force

,with effect from the 6th February, 1981 . and section 5 shall come into

force with effect from the 18th May, 1981 Of from stich ear1ier da te as

may be established by notice in the Gazette by the Minister responsible

for Justice on the advice of the Workings of the Law Courts Com-

mission.

Section 82 of the principallaw shall be amended as follows

(a) subsection (2) thereof shall be re-numbered subsection (3);

and

(b) immediately after subsection (l) thereof there shall be

inserted the following new subsection

"(2) A person may also be disabled perpetually or for a

time to practise the profession of Advocate on the recommen-

dation of the Workings of the Law Courts Commission.".

Immediately after Title IX of Book First of the principal law

there shall be inserted the following new Title

"TITLE X

94A. (1) There shalI be a commission to be known as

the Workings of the Law Courts Commission. (and is in this

Title referred to as "the Commission") consisting of a Chair-

man and four other members, all appointed by the Prime

Mi nister in accordance with this section.

(2) The Chairman shall be a person over the age

of forty-five: years who has gained experience in public life

through pc1itics, public office or workers', civic or industrial

movements or organizations; of the four other members, two

shall be members of Parliament, one shall be a member of the

committee of the Chamber of Advocates and one shall be

chosen from among members of the organization of workers

having the largest membership

Provided that one of the two members of Parlia-

ment sh all be cho",en by the Leader of the Opposition and

provided further that no member of Parliament who is a

practising lawyer shall be a member of the Commission.

(3) The Commission shall have a secretary appoint~

ed by the Prime Minister from among public officers perform-

ing duties in the Minis!!')' responsible for justke or in a depart-

ment falling under the l\Iiinistry.

(4) The Prime Minister may also at any time

appoint a person as Chairman of the Commission whenever

the Chairman is absent from Malta or otherwise unable to

perform his functions.

(5Y The functions of the Commission shall be -

(a) to supervise the wOI1'kingsof all courts of civil,

commercial and criminal jurisdiction, including the

Constitutional Court, and to recommend to the House

of Representatives th e remedi es which appear to it con-

ducive to a more efficient functioning of such courts;

(b) to supcrvise the professional conduct of advo-

cates and legal procurators;

(c) to consider and deaI with complaints by any

person concerning any of the matters aforesaid;

(d) to con.sider and report on any m atter concern-

ing the administration of justice referred to it by the

Prime Minister; and

(e) sueh other functions as may be assigned to it

by 1aw.

(6) In particular, but without prejudice to the gene-

rality of the forego ing, the Commission -

(a) sha11, not later than the end of December of

each year or as frequently as it may deem expedient,

make a report to the House of Representatives on its

activities and on matters considered by it, and may also

make such recomnlendations to the House as it may

deem appropriate;

(b) shall report to the Minister responsible for

justice and to the House of Representatives any instance

of undue delay which shall ħave come to its notice and

shall recommend the measures it may deem adequate to

remedy the delays, including any reform in the law or its

administration which appears to it conducive to an

expeditious conclusion of litigation;

(c) saving cases referred to in · sections 987 to 994

and in subsection (l) of section 995 of this Code, shall

have power to inquire into any comp1aint made to it

regarding any abuse or misconduct or unethical

behaviour attributed to any Advocate or Legal Procu-

rator in the exercise of his profession or in connection

with his professional duties;

(d) having considered any case of abuse or mis-

conduct or unethical behaviour attributed to an Advocate

or Legal Procurator, shall have power to recommend to

the President that a person be disabled perpetually or for

a time to exercise the profession of advocate or legal

procurator, or, where the findings against an advocate

or legaI procurator do not, in the opinion of the Com-

mission, justify disability, to inflict fines or make such

other provision as it may deem appropriate in the cir-

cumstances

Provided that if the Oommission is of the opinion

that its findings may justify a recommendation that an

advocate or a legal procurator should be disabled per-

petually or for a time exceeding six months, it shall,

before making any reco'mmendation to the President.

refer its findings to the Court of AppeaI, and the Court

shall examine the findip.gs of the Commission ·and, after

such proceedings, as it may deem appropriate, advise

1he Commission whether or not the facts of the case

justify a recommendation as aforesaid; and in making

its recommendations to the President, the Commission

shall be guided by the advice of the Court of Appeal,

and subject to the provisions of this Title, may make ruIes

concerning its own procedure, and the manner and time for

the making and hearing of complaints under this section, and

concerning any other matter within its functions, including

the conduct of proceedings in any court and the professionaI

conduct of advocates and IegaI procurators; and may aIso

otherwise regulate its own procedure and any other matter

aforesaid.

(7) The Commission may act notwithstanding any

vacancy in its membership, but shall not act unless at Ieast

three members are present.

(8) For · the purposes of this section, but without

prejudiee to the generality of the other provisions thereof -

(a) any advocate or Iegal procurator who knowing-

Iy shall, directly or indirectly, employ or accept the

services of any tout; and

(h) any advocate who agrees with a legal procu-

rator Of a notary public, and any legal procurator who

agrees with any advocate or notary public, to give or to

receive any share of the fees orother remuneration

earned by any one of them in respect of professional

work,

shall be deemed to have committed an abuse in the exercise

of his profession and in connection with professional affairs;

and the expression "tout" in this subsection means any person

who undertakes in return for a fee, reward or remuneration,

whether in cash or in kind of for any other consideration to

find dients for any advocate or legal procurator.

(9) The provisions of the Inquiries Act 1977 shall

apply mutatis mutandis to the Commission.".

Section 104 of the principal law shall be amended by the addi- Amcndment of

tion thereto of the fol1owing proviso

section 104 of

the principal

"Provided that the period of ten days mentioned in section law.

460A shall in no case be abridged.".

For subsection (4) of section 193 of the principal taw there Amendment of

shall be substituted the following subsections

"(4) The adjournment of a cause shall not be granted law.

except for the purpose of compliance with any procedure laid down

in this Code or, in exceptional circumstances, in accordance with

the provisions of subsection (5) of this section.

(5) A cause may be adjourned in exceptional circumstances

only if the Court is satisfied that sueh circumstances exist and so

states in the decree ordering the adjournment specifying those cir-

cumstances, and only on an applieation filed by the party demand-

ing the adjournment not later than two working days before the

day due for hearing or, if the cause of the adjournment arises after

the expiration of the said time limit as soon as practicable there-

after; and the application shall specify in detail the circumstances

justifying the dem and and shall be confirmed on oath by the

applicant or, if the appIicant is absent from Malta or is otherwise

unable to confirm the application in person, by the advocate

signing the application who shall, in such case further confirm on

oath the applicant's inability to confirm it himself.".

In Sub-Title VI of Title VIII of Palit I of Book Second of the Insertion of new

principal law, immediately before section 461 there shall be inserted section 46O!A

the following new section

"Proceed-

460A. (l) Sub ject to the provisions of subsection (2)

ings againsl of this section, no judicial act commencing any proceedings

~~vernmentmay be filed, and no proceedings may b.e taken or instituted,

and no warrant may be demanded, agamst the Government,

or against any authority established by the Constitution,

other than the Electoral Commission, or against any person

holding a public office in his official icapacity, ,except after

the expiration ·of ten days fromrhe service against the Go-

vernment 01' such authority or person as aforesaid, of a judi-

cial letter 01' of .a protest in which 'the right claimed 01' the

demand sought is clear1y stated; and the Registrar shall

refuse to receive any judicial aot 01' ·other document which is

presented in the Registry against the provisions of this

section.

(2) The provisions of subsection (l) of this

section shall not apply -

(a) to actions for redress under section 47 of the

Constitution; or

(b) to warrants of prohibitory injunction; Dr

(c) to actions for the correction of acts of civi1

status;

and where in accordance with the provisions of any law a

particular procedure inc1uding a time-limit or other term is to

be observed, the provisions of sub:section (1) of this section

shall not apply and the procedure aforesaid. including any

time-limit or other term , 'ShaH apply and be observed in 1ieu

thereof.".

Section 743 of the :principal law :sh wll be .amenqed as foHows

(a) the section shall be re-numbered as subsection (]) there-

of; and

(b) immediately thereafter there sha1l be addecl the follow-

ing new subsections

"(2) No court in Malta shall have jurisdiction to

enquire into the validity of any act or other thing done by the

Government or by any authority established by the Constitu-

tion or by any person holding a public office in the exercise of

their public functions or declare any such act or thing nul1 or

invalid or without effect, except and unless -

(a) such act or thing is "uItra vires"; or

(b) such act Of thing is c1ea.rly in violation of an

explicit provision of a written law; or

(c) the due form or procedure has not been followed

in a material respect and substantial prejudice has ensued

from such non-observance

Provided tha tan act or thing which is wi'thin the general

or special poweriS of a 'person .o r authority shall not be deemed

to be "ultra vires" unless the aot or ithing is clearly and exp1i-

citly prohibited or exc1uded by a wFitten law.

(3) No court in Malta shall have jurisdiction to order

the Government or any authority established by the Consti-

tution or any person holding a public office to da any act or

thing pertaining to their public functions, when the doing of

any such act or thing is within their power to do or to refrain

from doing; nor shall any such court have jurisdiction to

declare that any such act or thing as aforesaid should or

should not be or have been done

Provided that an act or thing shall be deemed to be

within the power of a perscn or authority to do or to refrain

from doing unless it is c1early and exp1icitly provided in a

written law that the act or thing shall or shall not be done.

(4) Where any act or other thing done by the Govern-

ment or by any authority established by the Constitution or

by any person holding a public office in the exercise of their

public function, has been revoked or cancelled, or has ceased

to have effect or to be operative, no court in Malta shall have

jurisdiction to enquire into the validity thereof or to dec1are

it nulI or invalid or without effect.

(5) For the purpose's of this seotion, .a nd of any other

provision of this and of any other law, service with the Go-

vernment is a special relationship regulated by the legal provi-

sions specifically applicable to it and by the terms and condi-

tions from time to time established by the Government, and no

law or provision thereof relating to conditions of emp10yment

or to contracts of service or of emp10yment applies, or ever

heretofore app1ied. to service with the Government except to

the extent that such 1aw provides otherwise.

(6) The provisioThS of this section sha11 be without pre-

judice to any jurisdiction explicitly conferred by the Constitu-

tion.".

In section 876 of the pri.ncipal law, immediately after sub-

section (2) thereof, t:here shall be added the following new sub secti on

"(3) The Court sha11 not issue any such warrant against the

Government or authority established by the Constitution of any

person ho1ding a public office in his official capacity unless the

authority or person against whom the warrant is demanded con-

firms in open court that the thing sought to be restrained is in fact

intended to be done and the Court is satisfied, after hearing the

exp1anations given, that unless the warrant is issued the prejudice

that would be caused wou1d not be capable of remedy.".

In section 995 of the principallaw, suhsections (2) to (9) both

inclusive shall be deleted.

Passed by the House of Representatives at Sittin g No. 478 of.the 11th March, 1981.

C. AGIUS

Speaker

C. MIFSUD

Clerk to the House of Representatives

Ippubblikal mid-Dipartimenr ts' l-Informazzjoni -

Published by Ihe Depar/ment of Information

Stampat !l-U .C.S. -

Stamperija tal-Gvern -

Prinled 01 the C .O.S. -

Govefllmelll PriYl/iflg Press