Office of the Chief Herald of Malta

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Arthur Radburn
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Office of the Chief Herald of Malta

Postby Arthur Radburn » 30 Mar 2020, 14:57

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For some reason, this forum overlooked the establishment of the world's newest heraldry authority, the Office of the Chief Herald of Malta [OCHAM] a year ago, on 21 March 2019. Its officers are the Chief Herald of Arms, two deputy chief heralds and three pursuivants.

The OCHAM is part of Malta's cultural heritage authority, Heritage Malta, and has a page on Heritage Malta's website. The page contains a biography of the Chief Herald of Arms, the arms of the OCHAM, and several FAQs.

Is it just me, or do some of these FAQs (and the answers) come across as rather defensive? Examples :
* "Does the Cultural Heritage Act mention heraldry at all?"
* "Does Heritage Malta have the power to establish a new Office and to appoint an officer to that Office?"
* "If the Act of Cultural Heritage [sic] does not say anything about granting, confirming or matriculating arms, what is then the legal framework and basis for the activities of the Office of Chief Herald? Where does its mandate come from?"
* "Are the Arms used by the Office of the Chief Herald Official?"

Perhaps they have taken note of points that have been raised in recent online discussions about the OCHAM, or wish to avoid the situation that arose in Ireland some years ago, when the legality of post-1943 grants of arms was questioned in the wake of the McCarthy Mor scandal.
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Re: Office of the Chief Herald of Malta

Postby Martin Goldstraw » 02 Apr 2020, 12:33

Sadly, the Q&A on the website of the Chief Herald of Arms of Malta does not actually clarify whether or not the granting of new arms/matriculation of arms (especially to foreigners) and acts relating especially to the regulation of arms are lawful.

I wrote to Dr Charles A Gauci, Chief Herald of Arms of Malta, on the 23rd February asking for clarification over what legal foundation underpinned his office and created the right to grant arms anew and regulate heraldry in Malta. I wrote because I am very concerned that there may not actually be any legal basis, or foundation, for his “office” and I feel that, if the Government of Malta intended to create an heraldic authority with the right to grant arms anew and to regulate the heraldry of the country, it may have failed to ensure that proper legislation is in place.

An extract of what I am assured is from the Letters Patent confirming that armorial bearings have been assigned, ratified and confirmed by the Chief Herald of Malta (presumably in his own registers) indicates that that the authority behind his acts is cited as being by virtue of the competence vested in him as announced “by authority in the Malta Government Gazette of 25th June 2019”.

I had hoped that the Chief Herald of Malta would be able to cite something a little more authoritative than the announcement of his appointment by Heritage Malta Ltd. in the Malta Government Gazette; if that is the only “authority” he is able to cite, then it appears that there is actually no Government authority which underpins his ability to “grant and regulate” armorial bearings. The announcement he cites as his authority, in the Malta Government Gazette, was made by Heritage Malta Ltd announcing the appointment of a new employee. Heritage Malta was set up by an Act of Parliament which gave it a specific roll (Cultural Heritage Act, enacted in 2002). Nothing in the Act creating Heritage Malta Limited (his employers) allows it to grant and regulate armorial bearings. It is quite irrelevant whether the appointment by Heritage Malta Ltd of an employee was approved by the Government, the Prime Minister or the Cabinet Secretary. What is relevant is the question what lawful authority is there for the said employee to grant and to regulate arms.

The only brief the Government has given to Heritage Malta, by an Act of Parliament, is to preserve and record Malta’s heritage, not to create an entirely new roll to regulate heraldry. Given the powers granted to it in the Act, Heritage Malta can preserve and record heraldry which is a part of the country's heritage but there is absolutely nothing in its remit to create a post to regulate heraldry or to grant arms anew.

As you may have gathered, I am very concerned. Even though Heritage Malta is an agent of the State and it can employ someone it may choose to call a herald, it would seem to me that it only has the lawful authority, given to it by an Act of the country's Parliament, to preserve and record the country's heritage; its remit is very specific and therefore very limiting. To appoint someone to regulate heraldry is to act ultra vires. To act ultra vires means that anything created outside its lawful powers are null and void.

If the Chief Herald of Malta is indeed acting ultra vires then petitioners for a new grant of arms, especially foreigners with no heritage or cultural connection to Malta, are receiving something which has no meaning whatsoever and is void in law. This is very concerning and needs some clarification urgently.

If my fears are correct, then I hope that the matter could be lawfully rectified by an appropriate Act of Parliament or amendment to the Act creating Heritage Malta.

I wrote to the Chief Herald in February and my letter was returned unopened marked No such name ??

I then corresponded with the Chief Executive of heritage Malta who instructed a learned advocate to respond however, the advocate skirted around my actual question and simply supplied references to what Heritage Malta can and can't do within the act, none of which could explain how the Chief Herald has been allowed to grant arms anew or, and this is of paramount importance, to regulate heraldry.

My response to the learned advocate was this:
"Thank you for response to my enquiry where you have been kind enough to set out and quote from the relevant Act creating Heritage Malta (of which I am already familiar).
I had hoped that my original letter to the Chief Herald dated 24th February and my subsequent letter to the Government Ombudsman dated 16th March had made it clear that I was not doubting the lawfulness of the appointment of a Chief Herald by Heritage Malta or the legal authority behind the creation of the office but that I sought clarification over what legal foundation underpinned his office and, more specifically, created the right to grant arms anew and regulate heraldry in Malta.
According to the Act “
the State of Malta has “the duty of establishing and maintaining administrative and regulatory structures of superintendence so as to ensure that this heritage is protected and conserved, as well as such other structures as are required for the management of the care, exposition and appreciation of this heritage.”
Although this part of the act refers to a power to establish and maintain an administrative and regulatory structure of superintendence, the pertinent words here are “superintendence so as to ensure that this heritage is protected and conserved”. This speaks only of the preservation and conservation of Malta’s heritage.
“the mission of the Agency is to ensure that those elements of the cultural heritage entrusted to it are protected and made accessible to the public as defined in this Act”

Here again, the Act speaks only of protection and accessibility of the Country’s cultural heritage and although there can be no dispute that this includes heraldry, both Maltese and foreign, the definition of cultural heritage as set out in Article 2 of Chapter 445 clearly means that which is already existing and therefore already a part of Malta’s cultural heritage.
The letter of appointment of the Chief Herald, dated 21st March 2019, goes on to state that “Heritage Malta, through its subsidiary Heritage Malta Services Ltd, hereby establishes the Office of Chief Herald of Arms of Malta, which will regulate all heraldry” and “The Chief Herald of Arms of Malta will have the power to devise and grant new Arms, both corporate and personal, to confirm Arms already in use and to register Arms already granted by appropriate foreign authorities.” I would be obliged if you would show me where, in the Acts creating Heritage Malta, the powers to protect and make accessible or to superintend the protection and conservation of Malta’s heritage allow any employee to devise and grant new Arms and to register (in Malta) Arms granted by other foreign authorities. These powers given to the Chief Herald in his letter of appointment, it would seem to me, have no foundation within the relevant Act which sets out so clearly that the purpose of Heritage Malta is to conserve and record the Country’s heritage. Likewise, there is nothing in the Act creating Heritage Malta that would allow it to “regulate all heraldry both corporate and personal within the Republic of Malta”. It can preserve/conserve and record the existing, but it cannot create new heraldry (by grant) or regulate heraldry (i.e. control what it will allow to be created anew).

I am very concerned that even though Heritage Malta is an agent of the State and it has the powers to employ someone it may choose to call a herald, it would seem to me that it only has the lawful authority, given to it by an Act of the country's Parliament, to preserve and record the country's heritage (which includes heraldry that is already a part of the Country’s heritage); its remit is very specific and therefore very limiting. To appoint someone to regulate heraldry and to grant arms anew, especially to foreigners is to act ultra vires. To act ultra vires means that anything created outside its lawful powers are null and void. "

He replied that he considered he had answered my questions which is probably lawyer speak for I can't assist my client any further.

This has now allowed me to refer the matter to Malta's Government Ombudsman and the matter is being investigated by their Chief Investigating Officer. Provided the Officer is satisfied that I have an interest in the matter it will be fully investigated. I hope that I have provided sufficient to illustrate that I have a sufficient interest to raise the complaint. If it is considered that I don't have a sufficient interest, the investigation will fall at the first hurdle; it is unlikely that those (for example Americans) who have petitioned for a grant from the Maltese herald (and who would be able to demonstrate an interest as they have been sold a grant) would make a complaint as they clearly don't want their grant to be proved to be ultra vires.

My motivation in all of this is simply to obtain clarity. If we take recent examples of newly created heraldic authorities, they were all set up by a clear and specific act of Parliament. Not so with Malta and it appears to have been built on sand. The Armorial Register limited is the publisher of an International Armorial Register which is now in its third volume (copies are deposited in the UK and Irish legal deposit libraries). We accept applications, to the Register, from anyone who is legitimately armigerous (bears a legitimate coat of arms) and we have a number of would be registrants (who are not Maltese citizens) awaiting acceptance who have received grants of arms or matriculations of arms from the Chief Herald of Arms of Malta (their arms have been recorded or granted by the chief herald) however, as there are doubts in the worldwide heraldic community about the right of the Chief Herald to grant/matriculate/register arms to foreigners, we are left with having to make a decision as to the lawfulness of these new Maltese grants of arms. As explained in my original letter to the Chief Herald, we have several classifications, one of which is “Arms Granted by Heraldic Authorities” however, it is not clear to me, without reference to any powers vested in the office by the Government, how we can classify grants of arms originating from a branch of Heritage Malta as anything other than “Private Registrations”.

The more I looked into it, the more I became convinced that the granting of new armorial bearings is ultra vires.

I submitted all of my questions because the matter of the right to grant arms, by the Chief Herald is, in the world wide heraldic community in some grave doubt and I felt that it would be far better to have the matter clarified to assist us with properly indexing those arms granted to, say, citizens of the United States of America, who have no connection to Malta. This is a matter of the integrity of both the Chief Herald and The Armorial Register. However we classify these arms, it will be recorded forever in the volumes of our books so we need to get it right.
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Re: Office of the Chief Herald of Malta

Postby Chris Green » 02 Apr 2020, 18:03

Would there be any mileage in a test case - someone from outside Malta applying for a grant and, having received it, complaining to the Ombudsman that they had heard that the Chief Herald had no legal authority to grant arms?
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Re: Office of the Chief Herald of Malta

Postby Martin Goldstraw » 02 Apr 2020, 19:47

Chris Green wrote:Would there be any mileage in a test case - someone from outside Malta applying for a grant and, having received it, complaining to the Ombudsman that they had heard that the Chief Herald had no legal authority to grant arms?


Chris, we haven't yet fallen at the first hurdle. The Ombudsman's Chief Investigator has had my reasoning that I/The Armorial Register have a legitimate interest on her desk now for a couple of days now and she has always (previously) responded within a day. I'll keep everyone posted.

One of the biggest difficulties I have had throughout is that everyone, in an official capacity I have spoken to (save the Chief Herald who declined to answer my questions when I finally did get through to him) appears to have absolutely no idea about what a grant of arms is and the depths and huge responsibilities involved in the "regulation" of armorial bearings. I have had a number of those who have obtained grants ad matriculations already from Malta who have tried to convince me that the CH has a right to grant arms by pointing to various parts of the Act creating Heritage Malta that "could be interpreted as meaning" or "perhaps this might be interpreted as" etc however, what all fail to accept (because they have obtained a grant and therefore want to believe it is OK) that when creating such an office, the Act creating it can't be vague and woolly but must be specific and unambiguous. The only thing specific and unambiguous about the Act creating Heritage Malta is that it is limited to the protection, preservation and recording of Malta's heritage. The granting of new "Maltese" Arms to a foreigner or the marticulation of Arms granted originally by the Lord Lyon to a Scotsman is stretching Malta's heritage to the point of derision.
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Re: Office of the Chief Herald of Malta

Postby Arthur Radburn » 02 Apr 2020, 22:47

Martin Goldstraw wrote:I have had a number of those who have obtained grants ad matriculations already from Malta who have tried to convince me that the CH has a right to grant arms by pointing to various parts of the Act creating Heritage Malta that "could be interpreted as meaning" or "perhaps this might be interpreted as" etc however, what all fail to accept (because they have obtained a grant and therefore want to believe it is OK) that when creating such an office, the Act creating it can't be vague and woolly but must be specific and unambiguous. The only thing specific and unambiguous about the Act creating Heritage Malta is that it is limited to the protection, preservation and recording of Malta's heritage. The granting of new "Maltese" Arms to a foreigner or the matriculation of Arms granted originally by the Lord Lyon to a Scotsman is stretching Malta's heritage to the point of derision.

To judge from some of the answers to the FAQs on the Chief Herald's website, "could be interpreted as meaning" and "perhaps this might be interpreted as" does seem to be how they have done this.

Section 2 of the Act defines "cultural heritage" as including "intangible cultural assets", and they interpret them as including heraldry. The definition also states "pertaining to Malta or to any other country".

Section 3 allows an object less than fifty years old, "even if contemporary", to be classed as cultural heritage and be worth preserving if it is of cultural, artistic, historical, ethnographic, scientific or industrial value. The authorities regard a newly-designed coat of arms as falling into this category.

Section 9(3)(a) requires the board of Heritage Malta to determine its policy and strategy. After consultations with the Prime Minister, the board determined that the "regulation of heraldry is necessary in order to preserve, safeguard, promote and appreciate heraldry in the best possible way."
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Re: Office of the Chief Herald of Malta

Postby Michael F. McCartney » 03 Apr 2020, 21:07

This is an interesting situation; but for those of us who are not Maltese citizens or residents, or businesses whose activities fall within or depend on the legal jurisdiction of the Government of Malta, it's largely academic - a spectator sport.

The legal jurisdiction of any state herald or official registry, is limited to the legal jurisdiction of his own state. Dr Gaucci may or may not have certain powers under Maltese law - but outside of Malta, absent any legal provisions in other states, his grants or registrations have no legal effect beyond international treaties re: copyright of the artwork, and possibly evidence that the recipient used those arms as of a specified date. Beyond that, a foreign grant or confirmation of arms has no legal weight greater than a private assumption.

Martin - or rather, the AR as a business - may well have a legal interest in knowing the legal weight under Maltese law, of Maltese grants or matriculations - especially to foreigners - so the AR can properly reflect that info in it's publications. But I would argue that his (or our) personal concerns about "legitimacy" are misplaced, since the answer is essentially "none" anywhere outside of Malta - since the value of any grant, outside the legal jurisdiction of the grantor, is limited to the quality of the design and the merits of the artwork, and any sentimental attachment of the grantee.

No disrespect intended towards any official herald operating within his/her legitimate authority.
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Re: Office of the Chief Herald of Malta

Postby Michael F. McCartney » 03 Apr 2020, 21:26

I suspect that part of the underlying concerns may well be the profusion of noble titles and orders cited in the public announcements. Will this be or become a haven for gong-mongers and dubious 'fons honorarium' seeking evidence of legitimacy? And will that damage the reputation not only of this new Maltese entity, but also of heraldry generally? In other words, a sequel to the Irish MacCarthy Mor-or-less scandal?
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Re: Office of the Chief Herald of Malta

Postby Arthur Radburn » 03 Apr 2020, 22:24

Michael F. McCartney wrote:I suspect that part of the underlying concerns may well be the profusion of noble titles and orders cited in the public announcements. Will this be or become a haven for gong-mongers and dubious 'fons honorarium' seeking evidence of legitimacy? And will that damage the reputation not only of this new Maltese entity, but also of heraldry generally? In other words, a sequel to the Irish MacCarthy Mor-or-less scandal?

A good point. The OCHAM seems to be aware of the risk, as its application form requires proof of the authenticity of claimed titles and orders in the form of gazetted notices, certified copies of letters patent etc.

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Re: Office of the Chief Herald of Malta

Postby Michael F. McCartney » 04 Apr 2020, 09:19

Arthur - thanks! - that's encouraging; though FWIW the "former Ruling Houses" business is still something I'm personally not comfortable with. Some of them strike me as more Fons Honorarium than Fons Honorum ;)
(but then I'm not terribly enamored of either concept; small-r republican to the core!)
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Re: Office of the Chief Herald of Malta

Postby Martin Goldstraw » 04 Apr 2020, 13:01

In fact, I'm easy on whatever determination is made. I rather hope that a determination is made that demonstrates that my fears are without foundation so that we can all embrace the new Office of Chief Herald and the AR will know where to place the various grants/matriculations in terms of indexing. If it is found that the foundations are built upon sand then my hope is that they will swiftly move on to form legislation to place it all on a sound footing. Whilst I have reservations about the title of Count used by the Chief Herald, that is a concern about the individual, not the office.
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