Strasbourg, 7 January 2019


Questionnaire for the preparation of the CCJE Opinion No. 22 (2019):

“The role of court clerks and legal assistants within the courts

and their relationships with judges”

Please in your answers do not send extracts of your legislation (except just in one case mentioned below under question 26 where a separate attachment is possibly requested) but describe the situation in brief and concise manner.

Comments on what is also happening in practice, and not only on point of law, will be much appreciated.

Reply from Malta

As a preliminary introduction, in Malta apart from  administrative assistants,  we have Judicial Assistants and Court Attorneys which do a different job.  In brief, judicial assistants help trial judges in the collection of evidence, while court attorneys assist all judges in drafting decisions.

1.       Yes.

2.       Administrative assistants are generally appointed to help in the administration of a judge.  They help the judge with his paper work to enable him to concentrate, as much as possible, on his work as a judge.  In Malta parties are allowed to produce affidavits of witnesses as evidence , but otherwise all evidence is collected by the judge,   This involves a lot of work and time as it involves the hearing of witnesses and transcribing the evidence; to help in this function, judicial assistants are appointed to sometimes perform this work for the judge – this saves time for the judge.  Court Attorneys are assigned one to each judge and help the judge in his research on a particular case and in drafting the judgment. The purpose is to enable the judge to deliver judgments as early and as frequently as possible.

3.       As stated judicial assistants and court attorneys have a different role.  Judicial assistants have a role during the hearing of the case: they collect evidence, prepare memos with summary of the facts and prepare the case file for the judge.  The judge then discusses the case with his court attorney, a more experienced lawyer, who will prepare and draft a judgment for the judge.  The court attorney carries out research on the law and points out to the judge the relevant issues involved.  It is the court attorney who discusses directly with the judge the decision.  The court attorney does not write any decision autonomously, as he only writes as directed by the judge.

4.       Court attorneys may be assigned duties to draft the judgment.  Some Judges prefer to discuss the case with the attorney before assigning it to them for drafting, even indicating to the court attorney where he feels the decision  should go, while some other Judges prefer to hand over the case to the attorney and discuss the case after the attorney would have prepared his opinion.  Otherwise, when entrusted to prepare a draft, it is their duty to prepare a full comprehensive draft, including references to jurisprudence, for consideration by the judge.

5.       It is for the judges to decide whether to allow the court attorneys to be present during deliberations. Generally, deliberations are held in private.

6.       No.  So far court attorneys do not attend court hearings, but there are discussions among judges as to whether they should be allowed to attend as observers.  Court attorneys have only been appointed for the past four years, and so they are still being tested.

7.       The functions of the judicial assistants and court attorneys are well established.  While judicial assistants assist a trial judge in the collection of evidence, and prepare notes of what was heard, the only function of a court attorney is to prepare draft decisions as directed by the judge.

8.       It is finally the judge who signs and takes ultimate responsibility of the decision.  A judge, therefore, has to vet the draft, modify it as he deems fit and signs the final draft signifying his approval.

9.       The judge is at all times in control of the process.  The judicial assistant who is entrusted to collect evidence is constantly in touch with the judge and discusses with him any problems he might encounter in his functions.  The draft of the court attorney is examined by the judge who will finally decide as he considers opportune; he may or not agree with the opinion of the court attorney and finally, it is the judges’ opinion which binds.

10.   There is no official data as to the effect of judicial assistants and court attorneys.  However, it is noted that they have been very useful and have saved a lot of time for the judge.  In particular the court attorneys have speeded up the process of delivering judgments on time.

11.    Judicial assistants are assigned to all judges who hear cases at first instance; such judges are also provided with a court attorney.  On appeal, where no evidence is usually heard, the judges are only assigned with court attorneys.

12.   There are no lay judges in our system.

13.   The judicial assistants and court attorneys are not organised as such.  They fall under the direct responsibility of the judges to whom they are assigned.  Each trial judge has one judicial assistant and one court attorney, while each judge of the court of appeal has one court attorney each.  They do not perform their duties in a pool but each act individually under the responsibility of the judge.  The judicial assistant and court attorney assigned to a trial judge do sometime coordinate when the court attorney is assigned to draft a decision .

14.   In all cases, they are paid by Government.

15.   They are Government employees on a definite contract, although when renewed, they would fall to be considered to be employees on an indefinite contract.  Some judicial assistants (not court attorneys) are employed on a part-time basis, but they too fall to be considered as Government employees.

16.   The wage of a judicial assistant is very low, but court attorneys are well paid and the earn nearly equivalent of the lowest judge in our system.  The difference between a court attorney and a judge of the lowest rank was very small, but recently the wage of all judges was increased and so the gap has widened somewhat.

17.   No.  There is no formal education which is required to be appointed judicial assistant or court attorney, and there is no guarantee that any of these persons would be appointed as judges.

18.   Judicial assistants and court attorneys, before appointment, have to have four years experience working as lawyers.

19.   See above

20.   Judicial assistants are appointed by Government, while court attorneys are also appointed by Government but on the advice of judges.  Each judge is allowed to select his own court attorney from among qualified lawyers (with 4 years experience), but it is the government who has the final say on their appointment.

21.   Usually, they are appointed on  a three year contract, which will be extended if approved by the judge.

22.   They either revert to their previous employment, or venture into private practice.

23.   Many apply because they find the work interesting and would be happy with the pay.  Court attorneys, in particular, have a good pay which would enable them to have a normal livelihood.

24.   Government did say, unofficially, that court attorneys would be seen to favourably when it comes to appoint judges, if, of course, the judge to whom they are assigned issues a favourable report.  There is, however, no guarantee that a court attorney will in the future be appointed a judge.

25.   They do not wear a  gown or uniform, nor do they take an oath.  On taking office they sign a contract outlining their duties and other terms and conditions of their employment.

26.   There are no formal regulations outlining their status.  They are considered Government employees subject to the rules and regulations of the civil service.

27.   No rules as it all depends on the individual judge.

28.   There are informal rules which state that if, for any reason, they feel that they should not participate in a particular case, they should discuss the matter with the individual judge who would decide on whether to engage there services for that particular case.  If the judge is aware of any obstacle to the independence and impartially of the court attorney, he may take the initiative himself.  As the decision is ultimately of the judge, it is on him that rests the ultimate duty of independence and impartiality.

29.   No.

30.   Some judges feel that they need more than just one judicial assistant or court attorney as they feel that their work load requires more.

31.   As said above, some claim for more assistants.

Mr Justice Tonio Mallia

Superior Court, Malta.