Malta 1964 Constitution (reviewed 2016)

CHAPTER X. The Public Service

109. Public Service Commission

1. There shall be a Public Service Commission for Malta which shall consist of a chairman, a deputy chairman and from one to three other members.
2. The members of the Public Service Commission shall be appointed by the President, acting in accordance with the advice of the Prime Minister given after he has consulted the Leader of the Opposition.
3. A person shall not be qualified to hold office as a member of the Public Service Commission if he is a Minister, a Parliamentary Secretary, a member of, or a candidate for election to, the House of Representatives, a member of a local government authority or if he is a public officer.
4. A member of the Public Service Commission shall not, within a period of three years commencing with the day on which he last held office as a member, be eligible for appointment to or to act in any public office.
5. Subject to the provisions of this article, the office of a member of the Public Service Commission shall become vacant –
   1. at the expiration of five years from the date of his appointment or at such earlier time as may be specified in the instrument by which he was appointed; or
   2. if any circumstances arise that, if he were not a member of the Commission, would cause him to be disqualified for appointment as such.
6. A member of the Public Service Commission may be removed from office by the President, acting in accordance with the advice of the Prime Minister, but he may be removed only for inability to discharge the functions of his office (whether arising from infirmity of mind or body or any other cause) or for misbehaviour.
7. If the office of a member of the Public Service Commission is vacant or if a member is for any reason unable to perform the functions of his office, the President, acting in accordance with the advice of the Prime Minister, given after he has consulted the Leader of the Opposition, may appoint a person who is qualified to be appointed to be a member to be a temporary member of the Commission; and any person so appointed shall, subject to the provisions of sub-articles (5) and (6) of this article, cease to be such a member when a person has been appointed to fill the vacancy or, as the case may be, when the member who was unable to perform the functions of his office resumes those functions.

110. Appointment, etc., of public officers

1. Subject to the provisions of this Constitution, power to make appointments to public offices and to remove and to exercise disciplinary control over persons holding or acting in any such offices shall vest in the Prime Minister, acting on the recommendation of the Public Service Commission:Provided that the Prime Minister may, acting on the recommendation of the Public Service Commission, delegate in writing, subject to such conditions as may be specified in the instrument of delegation, any of the powers referred to in this subarticle to such public officer or other authority as may be specified in that instrument.
2. A delegation of a power under this article –
   1. shall be without prejudice to the exercise of that power by the Prime Minister acting on the recommendation of the Public Service Commission;
   2. may authorise the public officer or other authority concerned to exercise that power either with or without reference to the Public Service Commission; and
   3. in respect of recruitment to public offices from outside the public service, shall, unless such recruitment is made after a public examination advertised in the Gazette, be exercised only through an employment service provided out of public funds which ensures that no distinction, exclusion or preference is made or given in favour or against any person by reason of his political opinion and which provides opportunity for employment solely in the best interests of the public service and of the nation generally.
3. 1. An appeal shall lie to the Prime Minister, acting in accordance with the recommendation of the Public Service Commission, from any decision of a public officer or authority to remove any person from a public office in exercise of power delegated under sub-article (1) of this article:Provided that such right of appeal shall be without prejudice to any such other right of appeal as may be provided under article 121(1) of this Constitution in respect of the exercise of any other power delegated under sub-article (1) of this article.
   2. A right of appeal under this article shall be exercised in accordance with such provision relating to procedure as may be prescribed by the Public Service Commission under article 121(1) of this Constitution:Provided that any procedure so prescribed shall be the same for all classes of public officers.
   3. Where an appeal is brought under paragraph (b) of this sub-article by any public officer he shall, upon the consideration of the appeal by the Public Service Commission, have the right to be heard by the Commission in person and to be assisted by a representative of any trade union to which he belongs.
4. No person shall be appointed under this article to or to act in any office on the personal staff of the President except with the approval of the President.
5. The provisions of this article shall not apply in relation to –
   1. the offices referred to in articles 91, 92 (other than sub-article (4) thereof), 94, 95(6), 100, 108 and 111 of this Constitution; or
   2. appointments to act in any public office for two months or less in so far as the recommendation of the Public Service Commission is required for any such appointment; or
   3. appointments to the offices referred to in article 92(4) and appointments on transfer to and from the offices referred to in article 112 of this Constitution.
6. Recruitment for employment with anybody established by the Constitution or by or under any other law, or with any partnership or other body in which the Government of Malta, or any such body as aforesaid, have a controlling interest or over which they have effective control, shall, unless such recruitment is made after a public examination duly advertised, be made through an employment service as provided in sub-article (2) of this article.

111. Principal representatives of Malta abroad

1. Power to appoint persons to hold or act in the offices to which this article applies and to remove persons so appointed from any such office shall vest in the President, acting in accordance with the advice of the Prime Minister:Provided that in respect of any person selected for appointment from the public service the Prime Minister shall, before giving his advice under the provisions of this article, consult with the Public Service Commission and, on being removed from the office to which he has been appointed under the provisions of this article, the person so appointed shall revert to the rank which he held in the public service immediately before such appointment.
2. The offices to which this article applies are the offices of any Ambassador, High Commissioner or other principal representative of Malta in any other country.

112. Appointment on transfer in respect of certain offices

1. Power to make appointments on transfer to and from the offices to which this article applies shall vest in the Prime Minister acting after consultation with the Public Service Commission:Provided that the person appointed to any such office under the provisions of this article shall, on being transferred from that office, revert to the rank which he held in the public service immediately before his appointment to that office.
2. The offices to which this article applies are –
   1. offices the holders of which are required to reside outside Malta for the proper discharge of their functions; and
   2. such offices in the Ministry responsible for the external affairs of Malta as may, from time to time, be designated by the Prime Minister.

113. Protection of pension rights

1. Subject to the provisions of article 114 of this Constitution the law applicable to any benefits to which this article applies shall, in relation to any person who has been granted or who is eligible for the grant of such benefits be that in force on the relevant date or any later law that is not less favourable to that person.
2. In this article “the relevant date” means –
   1. in relation to any benefits granted before the appointed day, the date on which those benefits were granted;
   2. in relation to any benefits granted or to be granted on or after the appointed day to or in respect of any person who was a public officer before that date, the day before the appointed day; and
   3. in relation to any benefits granted or to be granted to or in respect of any person who becomes a public officer on or after the appointed day, the date on which he becomes a public officer.
3. Where a person is entitled to exercise an option as to which of two or more laws shall apply in his case, the law for which he opts shall, for the purposes of this article, be deemed to be more favourable to him than the other law or laws.
4. Any benefit to which this article applies (not being a benefit that is a charge upon some other public fund of Malta) shall be a charge upon the Consolidated Fund.
5. This article applies to any benefits payable under any law providing for the grant of pensions, gratuities or compensation to persons who are or have been public officers in respect of their service in the public service or to the widows, children, dependants or personal representatives of such persons in respect of such service.
6. References to the law applicable to any benefits to which this article applies include (without prejudice to their generality) references to any law relating to the time at which and the manner in which any person may retire in order to become eligible for those benefits.
7. Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this article to the extent that the law in question makes provision whereby any benefits to which this article applies are or may be reduced or withheld –
   1. until the person eligible therefor reaches the age of sixty years, or such lower age as may be determined by or under a law, if such person is in receipt of any income to which this sub-article applies and such provision is made in order that any such income together with any uncommuted benefits aforesaid do not in the aggregate exceed such amount as may be determined by, under or in accordance with any law, being an amount not less than the salary from time to time payable in respect of the post held by such person on retirement, taking account only, if such salary is incremental, of the corresponding increments earned prior to retirement; or
   2. in order to ensure compliance with any legal requirements relating to any of the purposes of paragraph (a) of this sub-article; or
   3. if the person eligible therefor ceases to be a citizen of Malta.
8. The income to which sub-article (7) of this article applies is any remuneration in respect of, or other income deriving from, any employment, work, service, office, trade, business, profession or vocation, or from any pension, allowance, gratuity or similar payment in respect of any such employment or other source of income.

114. Grant and withholding of pensions, etc

1. Where any benefits to which this article applies can be withheld, reduced in amount or suspended by any person or authority under any law those benefits shall not be so withheld, reduced in amount or suspended without the concurrence of the Public Service Commission, unless such benefits are reduced or withheld in accordance with any law referred to in sub-article (7) of article 113 of this Constitution.
2. The Public Service Commission shall not concur under subarticle (1) of this article in action taken on the ground that any person who holds or has held any of the offices referred to in articles 91, 95(6), 100 and 108 of this Constitution has been guilty of misbehaviour unless he has been removed from office by reason of such misbehaviour.
3. This article applies to any benefits payable under any law providing for the grant of pensions, gratuities or compensation to persons who are or have been public officers in respect of their service in the public service or to the widows, children, dependants or personal representatives of such persons in respect of such service.

115. Protection of Public Service Commission from legal proceedings

The question whether –

1. the Public Service Commission has validly performed any function vested in it by or under this Constitution;
2. any member of the Public Service Commission or any public officer or other authority has validly performed any function delegated to such member, public officer or authority in pursuance of the provisions of subarticle (1) of article 110 of this Constitution; or
3. any member of the Public Service Commission or any public officer or other authority has validly performed any other function in relation to the work of the Commission or in relation to any such function as is referred to in the preceding paragraph,

shall not be enquired into in any court.