Legal opinion: the Office of the Chief Herald of Malta

The Office of the Chief Herald of Arms of Malta, currently Dr. Charles Gauci (1947)*, regulates new heraldic emblems to Maltese citizens and to foreigners. The state has granted the Chief Herald the power to devise and grant new arms (personal or corporate); to register arms which have already been in use locally for many years; and to register arms previously granted by appropriate foreign authorities.

As part of the political decision-making process in recent years, it was decided to see whether the newly-established Office of the Chief Herald of Arms of Malta would attract enough interest from the public, before passing on to the next logical step and ask Parliament to pass specific legislation so as to formally embed heraldry in the laws of Malta. The results exceeded the expectations and draft legislative proposals were prepared, implementing comments by Malta’s National Ombudsman.

This article describes the current legal framework of the Chief Herald of Malta for issuing coats of arms.

Malta’s national and international legal order

  • Acts of Parliament (Primary Legislation);
  • Regulations, Rules, Orders, Bylaws (Subsidiary Legislation); and
  • EU Law including decisions of the ECJ.

The Constitution is the basic source of national law and stipulates that laws are passed by Parliament in the form of Acts of Parliament, but that Parliament may delegate legislative powers to other bodies (i.e. ministers, authorities, public bodies etc.) which are empowered to make subsidiary legislation within the sphere of authority delegated to them by an Act of Parliament.

In Malta, there is no judge made law: The Court interprets the law as contained in the various enactments. This does not mean however that judicial precedents are not authoritative. In fact judges as a general rule do not depart from a well settled principle established by case law, if not for grave reason. It is also the practice in the Inferior Courts to follow the principle laid down on points of law by a Superior Court.

The national legal order must also be viewed in the context of EU legislation, and especially the Treaty of Accession. International treaties may form part of Malta’s domestic legislation. By virtue of an Act of the Maltese Parliament, Act XIV of 1987, the European Convention of Human Rights was incorporated into Maltese law. No law in Malta may be inconsistent with the rights and freedoms set out in the Convention. The power of review is vested in the Courts. A good example is the Barone della Tabria case, in which it was established that the Maltese legal system does not recognize titles of nobility.

(..) that the title of nobility “ut sic” (and therefore independently of any property right derived from that title, and which remained unprejudiced in view of what is provided in article 28(2) of Chapter 251), once it is not recognized in our legal system (Article 28(1), Chapter 251), it may not be a “possession” within the meaning of Article 1 of the First Protocol, and neither may it give rise to a contestation regarding  “a civil right or obligation”. For completeness, there is being reproduced below a bit more “in extensor” the decision of the European Court in the case cited by the first court in the appealed judgment, and that is to say that of De la Cierva Osorio de Moscoso and others v. Spain: “The Court reiterates that under its case-law the Article relied upon does no more than enshrine the right of everyone to the peaceful enjoyment of “his” possessions. Consequently, it applies only to a person’s existing possessions and does not guarantee the right to acquire possessions whether on intestacy or through voluntary dispositions (see, mutatis mutandis, the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 23, § 50; and the Van der Mussele v. Belgium judgment of 23 November 1983, Series A no. 70, p. 23, § 48). “Furthermore, while a legitimate expectation of acquiring property may in certain instances be equated to a “possession” within the meaning of paragraph 1 of Article 1, such an expectation is always dependent on the commitment of a third party; that is the case, for example, with the granting of a commercial operating licence by the authorities (see the Pine Valley Developments Ltd and Others v. Ireland judgment of 29 November 1991, Series A no. 222, p. 23, § 51; and the Tre Traktörer AB v. Sweden judgment of 7 July 1989, Series A no. 159, p. 22, § 55).“The Court considers that a nobiliary title cannot, as such, be regarded as amounting to a “possession” within the meaning of that provision. In general, the same applies to a mere hope of being able to exploit such a title commercially, for example, as a trademark. Since in the instant case the applicants are unable to assert the right to use the nobiliary titles concerned, a fortiori, they cannot claim any legitimate expectation concerning the commercial exploitation of those titles. In these circumstances and in accordance with Article 35 § 3 of the Convention, the Court considers that the applicants’ complaints under Article 1 of Protocol No. 1 taken alone and under Article 14 of the Convention taken together with Article 1 of Protocol No. 1 must be dismissed as being incompatible ratione materiae with those provisions.”

The non-recognition of the said title – and always save what is provided in the said Article 28(2) – also brings as a consequence that the Articles 6(1) and 13 of the Convention are not applicable  – see, of note the decisions of the Court of Strasbourg in the names Wolff Metternich v.Netherlands (18 May 1999) and Bernadotte v. Sweden (3 June 2004).

Source: Constitutional Court, Civil Appeal Number 57/2006/1; see Appendix.

Hierarchy of norms

At national level, the Constitution is the supreme law of the land, followed by Acts of Parliament, followed by subsidiary legislation. However, the Treaty of Accession and EU regulations are legally binding and operative in Malta, as in all Member States, and must be taken into account along with EU law in general.

Institutional framework

While the three pillars exercise legislative, executive and judicial powers in their own sphere, the system of checks and balances, which Malta inherited from English principles of the rule of law, allows smooth operation of the legal system in Malta.

Malta follows the British parliamentary system, following 180 years of British rule. A minister proposes a draft law, which is then published in the Gazette for a first reading to be given in Parliament. Depending on the importance of the law in question a white paper may or may not be published beforehand. The House of Representatives then forms a committee and, after a second reading where members of Parliament are given the opportunity to comment in general terms on the particular piece of legislation in question, the Committee Stage examines each and every article in detail and proposes any amendments. When the Committee Stage is completed the Bill is sent back to Parliament for a final third reading, is subsequently given assent to by the President of the Republic and then becomes law.

The general rule is that a law enters into force on the date of publication, unless specifically stated in the law itself that the minister concerned may bring the law (or part of the law) into force on a different date.

Cultural Heritage Act

Malta’s cultural heritage is primarily protected by the Cultural Heritage Act 2002​. Prior to the enactment of this Act, the local cultural heritage sector was protected by the Antiquities Act of 1925. Other existing national legislation is also related to the conservation and protection of our cultural heritage. Several aspects of Malta’s cultural heritage are widely acknowledged as common heritage of mankind. To this effect, it is protected by international heritage legislation.

Content

This Act constitutes the reference legislative framework in matter of cultural heritage in Malta. It is divided into eleven parts, as follows: (I) Preliminary; (II) Principles and general duties; (III) Constitution, composition and functions of entities; (IV) Administrative and personnel provisions; (V) Financial provisions; (VI) Conservation professionals; (VII) Special powers of the State; (VIII) Religious cultural heritage; (IX) Offences; (X) Regulations; (XI) Miscellaneous. As a general principle, every person in Malta shall have the duty to protect the cultural heritage as well as the right to benefit from this cultural heritage (art. 5). The Superintendence of Cultural Heritage is created under Part III. Its task shall be to fulfill the duties of the State to ensure the protection and accessibility of cultural heritage. The functions are listed with detail in article 7. Particular regard is to be given to article 43, which establishes that all excavations or explorations of land as well as in the territorial waters or contiguous zone of Malta can only be made by the Superintendent or with the written permission of the Superintendent.

Definition of Cultural Heritage

The Cultural Heritage Act 2002 defines ‘cultural heritage’ as “movable and immovable objects of artistic, architectural, historical, archaeological, ethnographic, palaentological and geological importance and includes information or data relative to cultural heritage pertaining to Malta or to any other country. This includes archaeological, palaeontological or geological sites and deposits, landscapes, groups of buildings, as well as scientific collections, collections of art objects, manuscripts, books, published material, archives, audio-visual material and reproductions of any of the preceding, or collections of historical value, as well as intangible cultural assets comprising arts, traditions, customs and skills employed in the performing arts, in applied arts and in crafts and other intangible assets which have a historical, artistic or ethnographic value.”

Heritage Malta is an entity that has been created by the Cultural Heritage Act as is an operating agency, established to ensure that those elements of the cultural heritage entrusted to it are protected and made accessible to the public. Heritage Malta manages State-owned Museums and heritage sites. Heritage Malta is governed by a Board of Directors, whose role is to determine the policy and strategy of the Agency, to manage its human resources and finances, and to ensure collaboration with local and foreign bodies necessary for achieving the aims of the Agency. Additionally, Heritage Malta’s function is “to set up and manage the Office of the Chief Herald of Arms of Malta”.

Office of the Chief Herald of Malta

In June 2020, a complaint was lodged against the Office of the Chief Herald of Malta. The complainant contended that the Chief Herald did not have the appropriate authority to regulate heraldry, grant new armorial bearings or to register and matriculate existing foreign armorial bearings that have no cultural or heritage connection with Malta.

The Ombudsman’s mandate is to investigate any action taken by or on behalf of a governmental entity, which include the powers of investigation and recommendation but not directive powers. When the Ombudsman’s investigation shows that the complaint is justified, he may recommend that complainant be given adequate redress.

Heritage Malta insisted that the original Cultural Heritage Act also implied the protection of heraldry as an intangible asset. But in order to safeguard and entrench it further a specific change in the law was proposed. However, an updated strategy which included Heraldry and the Office of the Chief Herald of Malta, was due for public consultation. The Chief Herald of Malta pointed out that legislative intervention was required, and action will be taken to update the legislation to include the function of the Chief Herald of Malta to regulate the duties, powers and functions of the latter. This will eliminate the need for interpretation, and justification of the powers of this Office.

In his final opinion issued on 21 July 2021, the Ombudsman recommended the establishment of the Office of the Chief Herald in an appropriate manner (be it legislative or otherwise) and underlined that Chapter 445 of the Cultural Heritage Act did not include regulation of heraldry. It was therefore recommended that the law provides ground for the powers and functions of the Office of the Chief Herald.

On 11 August 2021, the Ministry for The National Heritage, The Arts and Local Government (MHAL) replied to the Office of the Ombudsman stating that with regard to the first recommendation, the Ministry had already coordinated the drafting of amendments of the Cultural Heritage Act which were subsequently presented to Parliament on 22 June 2021 and published as Act XLI of 2021 on 20 July 2021. Its objects and reasons were to update the principal Act according to current practice and standards of heritage management, especially regulatory obligations, edit and correct mistakes, establish an office of the Chief Herald of Arms, provide for compensation of impacts on cultural heritage, better facilitate the State’s right of preference for the acquisition of cultural heritage items, and the formal establishment of National World Heritage Sites Technical Committee.

As regards the second recommendation, the Ministry stated that the functions and powers of the Office of the Chief Herald will be promulgated through a legal notice, whereby the regulations will ensure that, while the law clarified that the Agency had the function to set up and manage the Office of the Chief Herald of Arms of Malta and, in consequence, had the competence on heraldry, the functions of the Office of the Chief Herald, its vires and duties, and relevant regulatory procedures together with operational regulation will be stipulated by law.

On 10 September 2021, the Ombudsman replied to the Ministry requesting to be notified once the subsidiary legislation was in place. With reference to the recommendations, he asked the Ministry what measures will be put in place to deal with actions taken by the Office of the Chief Herald of Arms of Malta prior to the amendment of the Cultural Heritage Act. On 5 October 2021, the Permanent Secretary (MHAL) replied that the proposed Regulations will provide a transitory provision which, in brief, will regulate retroactively that any action taken under the authority published in the Government Gazette of 25 June 2019, until the publication of the Regulations, will be deemed to have been issued under the proposed Regulations. In addition, the Ministry stated that it will inform the Ombudsman of the publication of the proposed Regulations.

The aforementioned legal notice stipulates the criteria for registering coats of arms; when the coat of arms is already formally granted and/or registered by other recognised heraldic authorities. “Recognised” refers to heraldic institutions recognised by the State in which they are situated. It is the sole decision of the Chief Herald of Arms to determine which particular institutions are to be recognised. In addition, all citizens of Malta are entitled to apply for a grant of Arms. However, a grant of Arms should be considered as a singular honour, issued at the discretion of the Chief Herald of Arms. Citizens of other countries also have the right to apply for a grant of a coat of arms at the complete discretion of the Chief Herald of Arms of Malta:

In Malta, the Office of the Chief Herald of Arms manages the official creation of coats of arms, flags and badges. All Maltese citizens and organizations (schools, associations, corporations, companies, etc.) can contact the Chief Herald of Arms to have heraldic emblems created for them as can other individuals and entities that have a connection with Malta. The criteria are the following:
Registration of Arms
Arms already formally granted and/or registered by other recognised heraldic authorities can be registered at the Office of the Chief Herald of Arms.
“Recognised” refers to heraldic institutions recognised by the State in which they are situated. It shall be the sole decision of the Chief Herald of Arms to determine which particular institutions are to be recognised.
New creations of personal Arms
Based on the founding principles of the Republic of Malta, all citizens of Malta are entitled to apply for a grant of Arms. However, a grant of Arms should be considered as a singular honour, issued at the discretion of the Chief Herald of Arms and based on the following criteria:
a. Any honours received (local of foreign)
b. Involvement of the applicant in public life together with other merits and activities
c. Professional qualifications held by the applicant
d. Membership of an Order of Chivalry.
Citizens of other countries also have the right to apply for a grant of Arms, based on the above criteria at the complete discretion of the Chief Herald of Arms of Malta.
Should an applicant be considered a suitable candidate for a grant of Arms, the Chief Herald would discuss with the applicant, ideas, including the incorporation of any already ‘established’ family Arms as displayed in Stemmi Maltesi or in other sources. Thus:
a. Abela’s “Della Descrittione di Malta” is the oldest known formally published (1647)
compilation of armorial bearings used by Maltese families. (see Lib. IV Not. III, p.
445 et seq). Later Arms and augmentations are also recorded in another equally reliable source viz., Ciantar’s sequel to Abela’s work, “Malta Illustrata” published in 1772, 1780 (see Lib. IV. Not. III p. 380 et seq).
b. Several Maltese family arms are recorded in various anonymous manuscripts to be found at the National Library of Malta. The authorship and basis for many of these Arms remains unknown.
c. Such already ‘established’ family Arms may be considered as the basis of the applicant’s grant of Arms but would need to be suitably differenced so as to show that the applicant (and his/her descendants) are the sole proprietors and users of the particular Arms in question. In addition, such Arms may need to be adjusted so as to ensure that they conform to the basic rules of heraldry.
The display of any local or foreign award or honour within a Coat of Arms ceases with the death of the holder of that award or honour.
An applicant may choose to have a completely new Coat of Arms created instead of one based on any already “established” family Arms. In this case the Chief Herald would discuss the applicant’s requirements and make his own suggestions and recommendations.
New creations of impersonal (corporate) Arms
When considering an application for impersonal (Corporate) Arms from any institution such as a club or society the Chief Herald would need to consider:
a. The nature of that institution, so as to ensure that it is non- controversial and generally socially acceptable.
b. The time scale during which that institution has been in existence
c. The number of members that institution possesses.
Already established personal Arms
(i) If it can be proven that certain personal Arms have been in uninterrupted use in Malta for a considerable period of time by the applicant’s ancestors, those Arms would be considered as part of Malta’s intangible cultural heritage and would be registered as they stand (tale quale). This concession applies especially to members of the Maltese nobility, in deference to the unique status of the nobility in the history and culture of the Maltese islands.
(ii) Registration or granting of Arms, do not signify State-recognition of any title of nobility which the bearer of the Arms in question may purport to hold. The State recognises the Arms not any titles which may be appended to it in deference to the 1975 Ġieħ ir-Repubblika Act. Titles of nobility may be mentioned en passant in the Letters Patent or document of registration for historical reasons.
(iii) In the case of a title of Maltese nobility, the right of the applicant to hold those specific Arms as a lineal descent of a former State-recognised title-holder of Maltese nobility would be included, together with the relevant genealogical information and details of the once-State recognised title.
(iv) It may also be necessary to difference the Arms with marks of cadency in the event of different branches of the family applying for the same Coat of Arms.
(v) Any gazetted foreign award, may be included in a Coats of Arms granted by the Office of the Chief Herald to any Maltese citizen. In addition, awards made by the Equestrian Order of the Holy Sepulchre of Jerusalem and by the Venerable Order of St. John in the British Realm may also be included.
(vii) Any person who claims a solitary undifferenced shield of Arms from the Abela & Ciantar lists would have to provide rigorous genealogical proofs of such exclusive entitlement based strictly on agnatic primogeniture.
Already established impersonal Arms
Maltese Corporations, e.g., Companies, schools, learned societies, band clubs etc. may have previously devised their own Arms (as opposed to simple logos) and may, sometimes even have registered them as Trademarks purely for copyright purposes. Such Arms would be eligible for registering at the Office of the Chief Herald together with any trademark references duly noted.
Arms held by Local Councils
As these Arms have all been gazetted in the Malta Government Gazette, they would be registered as they stand (tale quale).
Ecclesiastical Heraldry
The Office of the Chief Herald of Arms also grants Arms to Ecclesiastics and religious institutions of any denomination.
Discretion of the Chief Herald
Note should be taken of the following Regulation in the Heraldry and Genealogy Regulations, S.L. 445.07: Reg. 12: Arms may be granted to or registered by an individual or body corporate at the discretion of the Chief Herald

The Malta Government Gazette, No. 20,842, 22 April, 2022.

Conclusions

The changes in the Cultural Heritage Act did not come across purely as a result of the Ombudsman’s recommendations but as a result of detailed discussions at Ministerial and Prime Ministerial level. The Office of the Chief Herald of Malta is currently embedded in a solid legal framework. He is authorized by law to register and create coats of arms in the Republic of Malta. Mentioning in diploma’s of other honours, e.g. awards, titles, knighthoods and academic degrees, is a matter of courtesy, and has no legal consequences. Titles of nobility are not recognized in the Maltese judicial system and cannot be considered a possession, a civil right or an obligation (Philip Bugeja Viani vs Attorney General; see appendix). They are, however, part of Malta’s rich cultural heritage. Ignoring them would be an act of cultural whitewashing.

Because the applicant affirms that all of the information on her/his application form is correct to the best of her/his knowledge, supplying the Chief Herald with false information may constitute a criminal offense.

Note

  • Dr Charles Gauci was born in 1947 in Imtarfa (Malta), and studied at St Aloysius College and University of Malta (MD 1971). He served with the Royal Army Medical Corps and retired from the British  army as Lieutenant-Colonel (1992). He was director of the Chronic Pain Relief Clinic in Whipps Cross University Hospital, London. He is a member of various heraldic associations. Gauci has written extensively and gives lectures on heraldry and history of nobility.

Sources

Appendix

Translation from Maltese to English of the two Court Judgments (2004 and 2009) relating to the title of Baron of Tabria (1728) granted to Isidoro Viani by Grand Master Vilhena.

Judgment (2004)

Informal Copy of Judgment

Courts of Justice 

Malta

CIVIL COURT

FIRST HALL

Hon. Judge 

Joseph Azzopardi

Sitting of the 30th January, 2004

Writ number: 1722/2001/1

Writ Number: 1722/01 JA.

Corinne Ramsay and Christianne Ramsay Pergola.

-vs-

John Bugeja, Philip, Maryanne, and Julian Bugeja.

The Court;

Having seen the writ filed by the plaintiffs on the 30 October, 2001 whereby they premised:

That by a contract made in the acts of Notary Doctor Jeanette Laferla Saliba of the 14 January 1985, a copy is being attached marked Document A, Joseph John Scicluna Testaferrata Moroni Viani allegedly in the exercise of the power given to him by the proclamation of the Grand Master de Vilhena claimed to have nominated Lilian sive Lillianina Bugeja in the title of Baron of Tabrija and by the same act he claimed to have vacated and renounced the same title competent to him;

That by another act (document B) made on the same day, he received as a loan from John Bugeja the sum of Lm8000 which sum in fact did not have to be repaid because it represented the payment for the aforesaid transfer of title;

That subsequently the same Joseph John Scicluna did by his testament nominate as his heir the plaintiff Christianne Ramsay Pergola and as successor in his title his sister the plaintiff Corinne Ramsay;

That according to the same proclamation of Grand Master de Vilhena (here exhibited and marked Document C) it was only possible for the holder of the title to nominate successors in the title only after his death and not during his lifetime as he claimed to have done in the deed of the 14 January 1985;

That in any case the contract of the 14 January 1985, Document A, containing a testamentary disposition was superceded and its efficacy was removed by the later wills and nominations that the same Joseph John Scicluna was pleased to make;

That the contract of the 14 January, 1985 breaches and runs counter to Maltese public policy because, amongst other matters it claims to be an irrevocable testamentary disposition and also because it refers to a matter which cannot be the subject of a public deed, and is therefore lacking in form and null;

That the said Lillianina Bugeja died and was survived by the defendants as her heirs and successors;

Therefore they are requesting this Honorable Court to say why it should not:

  • declare and decide that, in the light of the circumstances so premised, the act of 14 January 1985, here exhibited and marked Document A, is null and without any effect because it breaches the public principles and policy of Malta and that in any case it was rescinded and revoked by later testamentary dispositions, with costs and ordering the defendant to appear in court to be examined.

Having seen the declaration of the plaintiffs sworn by Corinne Ramsay on the 30 October, 2001 and the list of witnesses;

Having seen the note of pleas of the defendants filed on the 1 February 2002 by which they stated:

1. Preliminarily: (a) that this court does not have any jurisdiction because it is precluded by section 29 (4) of Chapter 251 to consider a claim of invalidity of a contract of nomination of a title of nobility because such an examination would be recognizing or implying the possibility of recognition of the said title;

(b) that the defendant John Bugeja is to be liberated from the demands because he is neither an heir or successor in the title of Lilianina Bugeja Viani; In fact there is no request in regard to the contract Doc B, and he was only party to that contract;

(c) That the plaintiff Christianne Ramsay Pergola has to prove her legal interest because it does not result that she has any interest in the title of nobility in question;

 (d) That although the writ only lists one request, in fact there are two distinct and separate requests, one for the nullity, and the other for the rescission in subordinance.

2. On the merits and without prejudice:

That the request for the declaration that the said contract dated 14 January 1985 (Doc A) is null and without effect and is unfounded in fact and in law because:; (a) Joseph John Scicluna Testaferrata had every right to nominate Lilianina Bugeja Viani in the title of Baron of Tabrija by means of a Notary’s deed made “inter vivos” and this nomination cannot in any way be considered to be a testamentary disposition; (b) the proclamation of the Grand Master de Vilhena does not say anywhere that such nomination may only be made by means of a testament and that it would take effect only after the death of the previous holder, which holder has every right to renounce the title whenever and however he wishes; 

(c) subordinately, in any event, the same Joseph John Scicluna Testaferrata had confirmed the nomination in favour of Lilianina Bugeja Viani of the same title in the first Article of his secret testament dated 14 January 1985 and published by Notary Dr Tonio Spiteri on the 28 November 1995 (copy BV1) which testament or article was not revoked at any time until he died on the 6 June 1995. In fact, the plaintiffs did not exhibit any testament which revokes.

Save further pleas.

Having seen the declaration of the defendants sworn by Philip Bugeja on the 1 February 2002 and the list of witnesses;

Having seen the record of the sitting of the 7 November 2003 whereby the court case was left for judgment on the defendants’ first plea;

Having seen the acts of the process and the written notes of the defendants;

Considered:

That the Court must decide whether it has jurisdiction to hear the court case because of what is provided in article 29(4) of Chapter 251 of the Laws of Malta which says that no public officer or authority may recognize in any way and may do nothing that means a recognition of a title of nobility;

In effect, the plaintiffs are requesting the nullity of the public contract which took place on the 14 January 1985 in the acts of Notary Jeanette Laferla

Saliba by which contract Joseph John Scicluna Testaferrata Moroni Viani had nominated in the title of Baron of Tabrija Lilianina Bugeja, today deceased, and mother of the defendants;

The plaintiffs are claiming that the said Joseph John Scicluna Testaferrata Moroni Viani did not have the power to do this and effectively stultified the effect of this act by means of his last testamentary dispositions;

The defendants by their pleas are maintaining in effect that if the Court investigates the nullity of the said contract, it would indirectly be recognizing the title of nobility.

The plaintiffs in their written notes are saying that they are only requesting a declaration of nullity of the contract.

One immediately realizes that the plaintiffs’ argument is one which falls in the “petitio principii” or as they say in the English language ‘they are begging the question’. The effect of the declaration requested by the plaintiffs is in effect that the Court decides who is entitled to style himself the Baron of Tabrija. This when the mens legis behind the Chapter 251 is clear. The legislator made it clear that he will not continue recognizing titles of nobility and also wanted that no public authority should take any notice of them. 

Society is just not interested if someone calls himself Baron or Count of wherever he wishes, and certainly this should not concern the Court. The plaintiffs may of they wish call themselves whatever they like without requesting the intervention of the Court. It is clear that the legislator did not want the public bodies to waste their time on such matters.

For these motives, the Court upholds the first plea of the defendants and therefore declares that it has no jurisdiction to decide on the plaintiffs’ request, with costs to be borne by the plaintiffs and liberating the defendants from the court case. 

Read.

< Final Judgment >

MaltaGenealogy.com

Judgment (2009)

Informal Copy of Judgment

Courts of Justice 

MALTA

Constitutional Court

H.H. The Chief Justice

VINCENT DE GAETANO

Hon. Judge

JOSEPH D. CAMILLERI

Hon. Judge

JOSEPH A. FILLETTI

Sitting of the 20 February 2009

Civil Appeal Number 57/2006/1

Philip Bugeja Viani

v.

Avukat Generali

The Court:

Preliminary: 

  • This is an appeal, or rather two appeals, from a judgment of the First 

Hall of the Civil Court in its ‘conventional’ competence given on the 10 July 2007, by which that Court denied the requests of the applicant Philip Bugeja Viani, with costs against him. It is said “two appeals” because, surprisingly, there is also a cross appeal by the Attorney General. 

  • By means of an application files on the 8 November 2006 before the First Hall of the Civil Court, Philip Bugeja Viani premised that after the death of his mother Helen sive Liliana Bugeja, who had the nobiliary title of Baroness of Tabrija, he made a request to the Committee of Privileges of the Maltese Nobility so that he be recognized as the successor of his mother in the aforesaid title of nobility; This committee appointed a subcommittee to report on his claim, but that subcommittee did not do anything other than await the outcome of a court case in the names “Corinne Ramsey et v. John Bugeja et” which was pending before the First Hall. The applicant continued explaining that in that other case so mentioned, decided on the 30 January 2004, the First Hall upheld his preliminary plea and declared that it “had no jurisdiction to decide on the plaintiffs’ request” and this in view of what is provided in Article 29(4) of Chapter 251 (Law of “Gieh ir-Repubblika”) that no public officer or authority in Malta may in any way recognize any title of nobility. The applicant continued saying in his application that on the 25 July 2005 the Committee of Privileges of the Maltese Nobility informed him that his request that he be recognized as successor of his mother in the title of Baron of Tabrija was not being accepted and that instead, on the recommendation of the subcommittee, Corinne Ramsay Scicluna was so recognized. 

The applicant continued saying that he did not agree with the decision of this Committee of Privileges and that “he wanted to impugn by judicial process both the recommendation made by the sub-committee as well as the decision taken by the Committee of Privileges”, but he may not do this because the said article 29(4) precludes “the Courts from considering and deciding causes about disagreements or contestation that may be related to the recognition of a title of nobility..” According to the applicant, this amounts to a violation of Article 6 and 13 of the European Convention, as well as Article 1 of the First Protocol of the said Convention.

Having stated all this, Philip Bugeja Viani requested that court to “give all the necessary remedies, to make such orders and issue such acts and give such directives that it deems equitable so that their (recte: his) fundamental rights be protected, by (1) declaring that Article 29(4) of Chapter 251 of the Laws of Malta violates the right to an effective remedy guaranteed by Article 13 of the European Convention; (2) declares that the applicant has a right to submit to the Maltese Courts for the determination of his civil rights and obligations related to the recognition of any title of nobility (recte: singular); (3) declare moreover that the applicant is being obstructed from the enjoyment of this possession in violation of Article 1 of the First Protocol of Chapter 319 (recte: of the European Convention); and (4) order the payment of fair compensation to the applicant for the breach of his fundamental rights.”

  • The defendant Attorney General, in his answer of the 21 November 2006, made a preliminary plea that the application was null because it was made by the applicant not in his name which is “Bugeja” but as “Bugeja Viani”. He also pleaded preliminarily that none of the invoked Articles – 6, 13 and Article 1 of the First Protocol – were applicable to the case, as well as that the applicant did not have a legal interest to file the court case. On the merits, he said that the allegations and claims are unfounded in fact and at law.

The Appealed judgment: 

  • After exchanging written notes, and after the cause was heard before the first court during the audience of the 25 May 2007, that court, as said, by a judgment of the 10 July 2007 denied the requests of the applicant, with costs against him. That Court reached its decision after it made the following considerations: 

“That it results that the applicant made a request to the Committee of Privileges of the Maltese Nobility so that he be recognized as the successor of his mother in the nobiliary title of Baron of Tabrija. This request was denied and the applicant wished that this decision be reviewed by judicial process, however he is submitting that he is precluded from doing so because Maltese legislation, and precisely, article 29)4) of the Gieh ir-Repubblika Act (Chapter 251 of the laws of Malta). He is alleging that this constitutes a violation of his fundamental rights which are guaranteed by article 6 and 13 of the European Convention (Chapter 319 of the Laws of Malta), and Article 1 of the First Protocol.”

“As this Court sees it, the applicant is submitting that he does not have a ‘right to a court’ when, to a certain point, it does not result whether in fact he has such a right. Article 29(4) of Chapter 251 provides that: “It shall be the duty of every public officer or authority, and of every body established or recognized by law and of every member thereof, to refrain from recognizing in any way, and from doing anything which could imply recognition of, any title of nobility or any honour, award, decoration, membership or office which is not recognised in accordance with the foregoing provisions of this article”.

As the defendant says in his reply, this means that the use of the title claimed by the applicant is expressly prohibited by the law “in any document intended for the public authority”, and no officer or public organ may “recognize” such title. However, this does not mean that such title may not be used on documents or occasions which are not public. Article 28 of the same law says that titles of nobility are “not recognized”, but is does not say that they do not exist or that they were abolished. 

The law on Gieh ir-Repubblika did not have the purpose of canceling those titles of nobility, but only to remove all official recognition of the same titles, There is nothing which prevents a person from continuing to use titles of nobility which he enjoys in environments which are social, cultural and others which are not official in the sense of organized or sponsored by the organs of the State. Once this is established, there is nothing to stop members who possess titles of nobility from creating a committee to regulate the succession of those titles. 

It appears, in fact, that this committee was created some time ago, and it does not appear that its function is contrary to law. It is not prohibited for a group of people with a similar purpose to create an association or committee which regulates their purpose, and unless such club is not contrary to law, public order or morality there is nothing against the creation of such a society.

In this case, the committee of privileges of the Maltese Nobility does not appear to be acting contrary to the law or public order. It is the law that titles of nobility are not legally or officially recognized, however, there is nothing wrong for those who claim to have some title of nobility to, even within the limits of their interests, regulate who has the right to bear a particular title instead of another. Once, however, this is done, the committee of that club is obliged not only to act within the terms and according to the club statute, but to follow the principles of natural justice in its deliberations.

It is this court’s understanding that each member of a society which has a structure and a formal statute has a right to be treated “fairly” by the same society, and this means that, in his regard, there should be followed the principles of natural justice. If a member alleges that this did not take place, then he has a right to apply to these courts, so that, without entering into the private matters of such club, it be seen that matters take place “fairly”,

The jurisdiction of the ordinary courts of “review” is not limited to the actiosn of the official administration, but is intended as well to see whether the contracts between parties are executed in good faith and “fairly”. If a group of people create an association with specific rules and with a committee which contemplates to regulate who may form part of that society and who may not, these courts have the function of ensuring that those rules be respected and the committee so created, acts in a way which is “fair”, and in particular, follows the principles of natural justice. 

When a court acts as said, it is exercising its function to ensure that contracts are executed with equity and for that which is contemplated (art. 993 of the Civil Code) and is not in any way “recognizing” officially the status of the member of that club, The purpose of “judicial review” is not for the court to give a stamp of officialdom to the impugned decision, but to ensure that to arrive at such decision, there were followed the principles of natural justice which are inherent to every process. Whether a decision is of an official administrative nature or not, depends on the organ which delivered it and the laws of the country, however whatever may be the nature of such decision, every person who has an interest has a right to insist that the process is a “fair” one.

Now it is true that for “judicial review” to take place, whoever is exercising the action must show his legal interest in the development of the cause, which interest must exist at the beginning of the cause and continue throughout the hearing of the cause. (“Laferla vs Lauri” decided by this Court on the 2 May, 2002). As the Honorable Court of Appeal said in the cause “Goggi vs Mifsud’, decided on the 11 April,1930, although our code does not make any provision which considers the need for an interest, this need may be desumed from article 236, which talks about the right of appeal “by whoever may have an interest”, and from article 960, which considers the intervention in a cause in statu et terminis, in both cases of the Code of Organization and Civil Procedure. That court continued saying “Fu nondimeno sempre ritenuto nella patria gurisprudenza, malgrado il difetto di una precisa disposizione della legge in materia, e come corollario di (queste) due disposizioni, che base e misura di ogni azione guidiziario e` l’interesse in chi la istituisce e in chi la contesta perche` se l’interesse e una condizione sine qua non per il semplice intervento e per l’appello, e` tale con maggior ragione per poter iniziare un giudizio”.

In this context, the interest must be legal in the sense that this interest must be recognized by law and the action is one intended to obtain a remedy protected by the law. 

Because of this requisite, it was decided that the remedies which only go as far as obtaining a simple declaration are not permitted. In the cause “Darmenia vs Borg Oliver noe”, decided by the Honorable Court of Appeal on the 18 February, 1966, it was said “in the system probably followed by our Courts although it is not prohibited for demands to be made to obtain a simple declaration which could be intended for another demand which is definitive or final, even though this is not deducted, the Court must be persuaded that that other remedy may be given; if such consequential remedy is not obtainable from the court, then the declaration is not to be given. See also, “Edrichton Estates Ltd vs Munro Philips & Co Ltd”, decided by this court on the 2 October, 2003, where it is said that in the case of declaratory demands, the Court may take cognizance of them as long as they are intended for another demand which is definitive or final, even if this has still not been deducted in the judicial process (see also “Grech vs Grech”, decided by the Honorable Court of Appeal on the 11 January, 1989).

On the other hand, it was also said” The interest for who makes a cause it is not necessary that it is patrimonial but it may also be moral or abstract, as long as it is of a legal nature, meaning that it must correspond to the injury of a right, and therefore, it is enough, to base such interest even for a simple honorific title.  It isn’t even necessary to have a violation of a right real and proper, but it is enough that such right be threatened.– “Axiaq vs Mizzi”, decided by this Honorable Court on the 13 October, 1952 (Kollez. Vol. XXXVI.11.532). 

The court, in that cause, continued to hear the cause which concerned the simple interpretation of a legacy, and although, it could have been said that it might not have been executable, “it is not fathomable how a judgment which gives that interpretation may be ignored”.

Also interesting is the decision in the cause “Falzon Sant Manduca vs Weale”, decided by the Honorable Court of Appeal on the 9 January, 1959, (Kollez. Vol XVIII.1.1), where it is said that the interest need not be exchangeable in money or economic value. In the cause, “Ganado vs Ezekuttiv tal-Partit Nazzjonalista”, decided by the Honorable Court of Appeal on the 3 September, 1961, it was also decided that “the right of the plaintiff violated by the impugned decision has moral content, and falls in the category of intangible subjective rights – which right the plaintiff has with this action the interest to be affirmed by the judicial authority.”

In this case, the procedure of “review” that may be attempted by the applicant, could lead to proving his right to the title of nobility claimed by him, which although may not have any patrimonial effect, will surely have a moral content, at least amongst the other members of the club. As said the “intangible subjective rights” may also be affirmed by judicial process.

When it has made an examination of this kind, the court is not interesting itself the decision “ut sic”, and nor should it enter into the considerations which that society would have made to arrive at its decision, but the interest of the court is only to ensure that he has been treated “fairly” by his fellow club members.

Every citizen has a right to this minimal protection by the judicial organ, meaning to ensure that the regulations of the statute of the society to which he belongs be followed and that, in any case, there never be ignored the principles of natural justice (see, as a reflection of this, the decision of this court, in the context of the General Workers Union, decided on the 3 August, 2006 after an application in the names “Attard Sultana vs Zarb et”).

The court is emphasizing that with the procedure of “review”, the court is not and should not substitute the discretion of that club or committee with its own. This, however, does not mean that the jurisdiction of the ordinary courts is completely annihilated by the fact that the discretion may be exercised only by the Board. As the Honorable Court of Appeal said in the cause “Eden Leisure Group vs Borg D’ Anastasi”, decided on the 27 Jun, 2003, “Today it is clear that the Civil Court may review the operations of any administrative tribunal, first so as to ensure that the principles of natural justice have been observed, and second to ensure that there is no wrong or incomplete enunciation of the legal hypothesis; and this without attempting in any way to substitute the Board’s discretion with its own.”

This also was observed by this court in the cause “Power Projects Ltd vs Agius”, decided on the 16 June, 2003, which said that in the context of the decisions of the Industrial Tribunal, those decisions may be reviewed if the Tribunal acts ultra vires of the powers given to it. The Tribunal has to also ensure that justice takes place according to the merits of the substance of the cause, and this without prejudice to the rules of natural justice. 

It was also saif that the courts do not have any jurisdiction to reconsider or review the merits of the controversy which was decided by the Tribunal (see also “Falzon vs Grima”, decided by the Honorable Court of Appeal on the 17 April, 1993).

In this context, and within the limits so explained, this court in its ordinary competence, enjoys jurisdiction to examine the operations of the Committee of Privileges of Nobility and this also in the light of the modern tendency that the obligation to observe the principles of natural justice is imposed “upon every one who decides anything” – “Board of Education vs Rice”, decided by the House of Lords in the cause in 1911 and reinforced in the decision of the same House of Lords in the cause “Ridge vs Baldwin”, decided in 1964..

This court is not saying that the title claimed by the applicant is a kind of “possession” that merits protection; this is far away from the Court’s mind. What it is saying is that the right to be treated “fairly” is a civil right which no court may deny. The protected right is not the title of nobility in question, but the right of judicial “review” of the process by which he was denied to be recognized, albeit unofficially but amongst Maltese social strata, as the Baron of Tabrija.

Only this is the civil right that may be invoked by the applicant. He may not expect the State to intervene and decide on who is the baron, count or other grade of nobility. The Maltese State took a political decision to become a Republic, and that, therefore titles of nobility (which are derived from a monarchy) are not to be recognized officially in Malta. The applicant may not, therefore, expect something which the state does not recognize in principle. The applicant may not expect as a civil right, that what the law does not give him. As said by van Dijk and van Hoof, “Theory and Practice of the European Convention on Human Rights” (Third Edition, page 394).“Although for the determination of whether a right or obligation is at stake the domestic legal system concerned has to be taken as a starting point, the Strasbourg case law has made it clear that, as part of the provision of the Convention, the words ‘rights and obligations’ have an autonomous meaning. Thus, the Commission held in the Kaplan Case:

‘These concepts [rights and obligations] are in themselves autonomous to some degree. Thus it is not decisive that a given privilege or interest which

exists in a domestic legal system is not classified or described as a ‘right’ by that system. However in deciding whether it is a ‘right’ for the purpose of Article 6(1), account must be taken of its ‘substantive content and effects’, the object and purpose of the Convention and the national legal systems of other Contracting States.’”

“If, according to this line of interpretation, a certain claim is considered to be a ‘right’, the Court’s case-law requires for the applicability of Article 6 that this right ‘can be said, at least on arguable grounds, to be recognized under domestic law’. The words ‘on arguable grounds’ leave the Commission and Court sufficient ground to make an assessment independently of the arguments advanced by the defendant State on the issue. And the fact that the claim concerned was addressed as an issue in national proceedings constitutes sufficient ground for the ‘arguability’ of the existence of a right. On the other hand, if domestic law expressly excludes the claim concerned the Court takes the position that ‘to this extent’ there can be no arguable right which would make Article 6 applicable” (underlining by this court).

Although the application is a bit vague as to what sort of “judicial examination” is expected by the applicant, it is clear in the opinion of the court that the applicant does not have any right to expect more than what was expressed before in this decision. A Title of nobility ut sic may not be regarded as a “possession” for the purposes of the European Convention. 

One may not forget that the Government, by the law on Gieh ir-Repubblika, neither abolished those titles and, more importantly, nor did it divest the claimer of nobility from the property attached to that title (artikolu 28(2) of Chapter 251). Therefore as said in the aforesaid book by van Dijk and van Hoof, (ibid page 620), “The basic point of departure appears to be the economic value of the right or interest: where State measures do no affect this economic value, no responsibility under Article 1 is engaged”.

In fact the European Court of Human Rights in the cause “Pilar de la Cierva Osorio de Moscoso et vs Spain”, decided on the 28 October, 1999, had clearly observed that “a nobility title cannot, as such, be regarded as amounting to a ‘possession’ within the meaning of that provision”, that is to say the first article of the first protocol of the Convention. 

Therefore, because this court sees, within the limits of that stated before, that the applicant had from the very beginning a “a right to a court” for the judicial examination of the decision made in his regard by the Committee of Privileges of the Nobility of Malta,  it cannot uphold the demand of the applicant that he is being denied a right of access to the courts. As far as he claims more than that, the applicant is not entitled to  it.

For all intents, in the context of the preliminary plea of the defendant regarding the name of the applicant, as the Honorable Court of Appeal had said in the cause “Vella et vs Galea et”, decided on the 23 October, 1991 “Jean or John Mifsud and Jean Missud – are the same person. This means that the same person is described in different ways, but on such person’s identity there is absolutely no reasonable doubt. Now it is just as clear, obvious and without a shadow of doubt that it is persons who acquire rights and have obligations, and the names and surnames are to there to help identify and distinguish one person from another”. (underlining by this court).

The Appeal and Cross Appeal: 

  • From this judgment Philip Bugeja Viani appealed by an application filed by him on the 19 July 2007. Basically, he continued insisting that the article 29(4) of Chapter 251 violates his rights as protected by Articke 6 and 13 of the Convention, as well as Article 1 of the First Protocol of the same Convention. He is insisting that this is the implication of the judgment of the First Hall of the 3 January, 2004 in the names Corinne Ramsay et v. John Bugeja et, mentioned in his initial application. He is also complaining that the in the appealed judgment there is no reference to the judgment of the European Court Golder v. United Kingdom.
  • The Attorney General made a cross appeal. The appeal of the Attorney General is in fact not the “decide” of the judgment of the 10 July 2007, but of the motivations or arguments that took the First Hall to decide how it decided – and this, as we saw, decided by denying the demands of the applicant Philip Bugeja Viani.

Considerations made by this Court: 

  • This Court starts out by saying, without any hesitation whatsoever, that it completely agrees with the conclusion reached by the first court in the appealed judgment. That what was effectively said by the first court – and this is being said in different words because it appears that both the appellant Bugeja Viani as well as the appealed Attorney General misunderstood – was that the title of nobility “ut sic” (and therefore independently of any property right derived from that title, and which remained unprejudiced in view of what is provided in article 28(2) of Chapter 251), once it is not recognized in our legal system (Article 28(1), Chapter 251), it may not be a “possession” within the meaning of Article 1 of the First Protocol, and neither may it give rise to a contestation regarding  “a civil right or obligation”. For completeness, there is being reproduced below a bit more “in extensor” the decision of the European Court in the case cited by the first court in the appealed judgment, and that is to say that of De la Cierva Osorio de Moscoso and others v. Spain: “The Court reiterates that under its case-law the Article relied upon does no more than enshrine the right of everyone to the peaceful enjoyment of “his” possessions. Consequently, it applies only to a person’s existing possessions and does not guarantee the right to acquire possessions whether on intestacy or through voluntary dispositions (see, mutatis mutandis, the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 23, § 50; and the Van der Mussele v. Belgium judgment of 23 November 1983, Series A no. 70, p. 23, § 48). “Furthermore, while a legitimate expectation of acquiring property may in certain instances be equated to a “possession” within the meaning of paragraph 1 of Article 1, such an expectation is always dependent on the commitment of a third party; that is the case, for example, with the granting of a commercial operating licence by the authorities (see the Pine Valley Developments Ltd and Others v. Ireland judgment of 29 November 1991, Series A no. 222, p. 23, § 51; and the Tre Traktörer AB v. Sweden judgment of 7 July 1989, Series A no. 159, p. 22, § 55).“The Court considers that a nobiliary title cannot, as such, be regarded as amounting to a “possession” within the meaning of that provision. In general, the same applies to a mere hope of being able to exploit such a title commercially, for example, as a trademark. Since in the instant case the applicants are unable to assert the right to use the nobiliary titles concerned, a fortiori, they cannot claim any legitimate expectation concerning the commercial exploitation of those titles. In these circumstances and in accordance with Article 35 § 3 of the Convention, the Court considers that the applicants’ complaints under Article 1 of Protocol No. 1 taken alone and under Article 14 of the Convention taken together with Article 1 of Protocol No. 1 must be dismissed as being incompatible ratione materiae with those provisions.”
  • The non-recognition of the said title – and always save what is provided in the said Article 28(2) – also brings as a consequence that the Articles 6(1) and 13 of the Convention are not applicable  – see, of note the decisions of the Court of Strasbourg in the names Wolff Metternich v.Netherlands (18 May 1999) and Bernadotte v. Sweden (3 June 2004). In the latter judgment in particular it is said as follows: “The applicant complained that it was not possible for him

under Swedish law to challenge the current King’s refusal to restore his title of prince. This entailed a violation of his right to a fair hearing before an independent and impartial tribunal under Article 6 of the Convention. In the alternative, he submitted, this state of affairs amounted to a violation of his right to an effective remedy as guaranteed by Article 13. In addition, the applicant alleged that the manner in which his case had been handled amounted to discrimination on grounds of “birth or other status”, in breach of Article 14 taken together with Articles 6, 8 and 13.

“The Government invited the Court to declare inadmissible the complaints under Articles 6 and 13, as being incompatible “ratione materiae”, as well as the complaint under Article 14.

“The Court, for its part, bearing in mind its findings above with respect to Article 8, considers that the dispute in question did not concern a “right” that could arguably be said to be recognised under domestic law or an arguable claim of violation of the Convention. Articles 6 and 13 too were therefore inapplicable and so was Article 14.”

  • The first court, however, explained that when there is a contractual tie brought about by a statute of a committee, club or other body, there is a basis for a “judicial review” simply to see whether the agreed procedure was followed by which certain decisions were to be taken, as well as to assure that there were observed the rules of natural justice. This, and only this, was decided by the Court. And what it decided is correct. The judgment Golder, which is really, as well stated by the appellant, an important one for determining the parameters of Article 6(1) of the Convention, is not relevant to the case being considered today. It is one matter of a judgment which elaborates general principles and another matter of the application of those principles to the concrete case. 

Nor may the appellant raise an argument in his favour based on the judgment of the First Hall of the Civil Court of the 30 January 2004 in the names Corinne Ramsay et v. John Bugeja et. In that cause the plaintiffs demanded that the court declares null and without effect a contract made on the 14 January 1985 by which a person was claiming to, in the exercise of the power given to him by proclamation of the Grand Master de Vilhena  nominating in the title of Baron of Tabrija, another person. The plaintiffs had contested this contract precisely because according to them the proclamation of the Grand Master de Vilhena did not give this power. 

The First Hall simply decided that it had no jurisdiction to decide the plaintiffs’ demand because of the provisions of Article 29(4) of Chapter 251. It does not result – at least from the acts available to this court – whether an appeal was made from that judgment. That what was decided in the judgment Ramsay v. Bugeja is in agreement with that decided by the appealed judgment namely that:-

“[The applicant] may not expect the State to intervene and decide on who is the baron, count or other grade of nobility. The Maltese State took a political decision to become a Republic, and that, therefore titles of nobility (which are derived from a monarchy) are not to be recognized officially in Malta. The applicant may not, therefore, expect something which the state does not recognize in principle.”

  • Therefore the principal appeal is manifestly unfounded.
  • In regard to the cross appeal of the Attorney General, this is simply a frivolous one, because apart from that this court agrees with all the motivations and arguments of the first court, it is difficult for one to understand how one may make an appeal from the “motivation” of the judgment instead of the “decide”.

Decide: 

  • For the premised reasons, denies both the principal appeal with the costs of this principal appeal to be paid by the appellant Philip Bugeja Viani, and also denies the cross appeal, with the costs of this cross appeal to be borne by the Attorney General, and confirms “in toto” the appealed judgment.

< Final Judgment >

MaltaGenealogy.com

Comment on the case

The title of “Barone della Tabria” was conferred by Grand Master Vilhena, by patent of the 11th December 1728, on Isidoro Viani. The title is purely nominal and does not have any property attached to it. In their general observations, the Royal Commissioners observed that most of the titles granted by the Grandmasters were merely honorary and had no relevance on property tenure “although it appears that those titles (granted by the Grand Masters) have derived their different denominations from several feudal lands existing in these islands, this annexation, however, is in most cases purely nominal, for those lands were never in reality conveyed to the grantees, but they remained as they are still Government Property.” The Commissioners also identified the only three exceptions to this purely nominal phenomenon, where tenure of property was a prerequisite namely Bahria, delle Catene, and Senia, the last being a divisible property. See:- ‘Correspondence and Report of the Commission appointed to enquire into the claims and grievances of the Maltese Nobility’, May 1878, presented to both Houses of Parliament by Command of Her Majesty (C.-2033.) (See Report Paras. 82).

This title was conferred on Isidoro Viani with power given to him and his descendants of nominating a successor, and in failure of such nomination with automatic transmission to the first born descendant in the primogenial line. The grant is precisely as in the title San Marciano (See:- “Correspondence and Report of the Commission appointed to enquire into the claims and grievances of the Maltese Nobility”, May 1878, presented to both Houses of Parliament by Command of Her Majesty (C.-2033.) (See Report Paras. 31-32).

Altogether the Grand Masters created six titles which are disposable by nomination, namely Gomerino (Perellos), Budack (Perellos),San Marciano (Vilhena); Tabria (Vilhena), Culeja (Despuig) and Benuarrat (Despuig).

The actual report says the following:

“The fourth title is that of ‘Barone della Tabria’, granted by Grand Master Manoel, by patent, on the 11th December 1728, to the nobleman Isidoro Viani, and to one of his male or female descendents, with power to each holder of the title to name his successor, precisely as in the preceding title ‘barone di San Marciano’ – Tibi Nobili Isidoro Viani et post tui obitum uni ex filiis vel filiabus legitimis et naturalibus ex telegitime procreatis vel procreandis, quem vel quam omni futuro constitutus seu respective constituta, malueritis eligendum vel eligendam. Et in casu tui vel tuorum in infinitu decessus absque ulla nominatione vel elctione successoris in dicto titulo, ex nunc censeatur nominatus et electus primogenitus, nisi erit ad sacros ordines promotus et in religione professus, et in defectu marium, foemina primogenita…”

This title is held by Dr. Giuseppe Testaferrata Viani a lineal descendent of Isidoro Viani, first baron, as appears from documents exhibited by him. He does not however, uninterruptedly descend from a male line, for Barone Isidoro was succeeded in the title by Barone Gio Battista Viani, his son. Barone Gio Battista having left on his death no male issue the title was inherited by his daughter, Anna Viani, who married Mario Testaferrata, the claimant’s great-grandfather. It is for this reason that the real claimant’s family name is Testaferrata and not Viani. But as in the grant it is provided that in default of male issue the title is inheritable by female descendents, the said Dr. Giuseppe, although he descends from the grantee through a female line, is entitled to enjoy the present barony. No person having appeared to dispute his claim, he will be therefore included in the list, under the name of Dr. Giuseppe Testaferrata, “Barone di Tabria” This gentleman claims also the title of “Marchese” as one of the descendents of Mario Testaferrata. This point will be considered in another part of the present Report when we shall inquire into the titles granted by foreign sovereigns.

It is to be remarked that after the Commissioners Report a court case took place between Testaferrata Viani’s nephews ex sorore. It appears that Testaferrata Viani decided to nominate his younger nephew to succeed him in the barony. The elder nephew claimed that the nomination was invalid. However the court did not enter the merits of the validity of the nomination because it held that at that time, the only person who could exercise such an action was the parties aunt because she was older than their predeceased mother and therefore the primogenita. The court thus concluded that unless the action was exercised by Isidoro Viani’s primogenialdescendant, the nomination is to take effect.

Atteso che, inoltre lo stesso Gran Maestro, dopo di avere disposto dell’ annua consegna di un fucile che doveva essere fatta a lui e a tutti i suoi successori nel Magistero, si i expresso nei termini seguenti: Qua stante recognitione tam Te Nobilem Isidorum Viani quam tuos in hujusmodi Baroniae titulu successors ex te descendentes ab omni alio onere eximus et liberamus. Il Gran Maestro adunque contemplr tutii i discendenti dal concessionario, come persone capaci a posedere la detta Baronia, e le quali egli esentava da qualunque uleteriore prestazioneannua. Or se i vero, come i verissimo che quella Baronia pur essere posseduta da tutti i discendenti di esso Isidoro, come i altresi vero checiascun successore per regola generale ha da esere eletto e nominato, egli i sufficiente che siffatto successore per potere essere valildamentenominato appartenga alla discendenza di detto Isidoro, quantunque talora non sia discendente dal nominante. Atteso che, quindi qualunquerestrizione del diritto di nominare accordato ad ogni possessore della Baronia a favor dei discendenti die so Isidoro Viani, sarebbeinconciliabile coi termini liberi della concessione del Principe, secondo la quale la sola volontdel possessore doveva regolare chi dovessegodere il detto Titolo di Nobilt, tra i discendenti del detto concessionario, senza veruna distinzione di grado, di et` e talora di sesso di talidiscendenti elilgibili: salvo il provvedimento dato pel caso di eventuale mancanza di nomina. Atteso che, stante quanto precede in riguardoal detto Titolo Baronale, non i necessario ni utile di esaminare se sia anche di ostacolo alle proposte istanze dell’ attore, la esistenza di dettaNobile Orade Testaferrata Viani supposta la legittima succeditrice nel Titolo suddetta, come primogenita nella discendenza di Isidoro Viani.Poichi il primogenito o la primogenita avrebbe diritto a succedere nel detto titolo nel difetto di nomina da parte del possessore, ovveroqualora la fatta nomina fosse riconoscuta inefficace; e la nomina dall’ ultimo possesore fatta in persona del convenuto relativamente al dettoTitolo Baronale, ha, per le ragioni che precedono, da produrre il suo effetto.

Today it is no longer possible to effect any nomination. In the Gieh ir-Repubblika Act (ACT XXIX of 1975), the law dictates that it is “the duty of every public officer or authority, and of every body established or recognised by law and of every member thereof, to refrain from recognising in any way, and from doing anything which could imply recognition of, any title of nobility”. A similar duty is imposed in regard to other foreign honours which have not obtained approval by the local authorities.

(…)

Source: MaltaGenealogy.com
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