Our courts have, for decades, blindly applied the civil law concept of juridical interest or legal standing to public law actions, namely that plaintiff has to prove personal, actual interest in the subject matter of any litigation. This has rendered several provisions of the constitution unenforceable.
Take, for instance, the norm that the prime minister can only appoint MPs as members of his cabinet. If he were to do otherwise, who would have a juridical interest, namely an actual, personal interest in challenging such action? Practically no one.
A departure from this strict interpretation of a judicial doctrine – not found in any statute or piece of legislation – has been just laid down recently by a court of constitutional jurisdiction.
The case refers to an application filed by Anna Mallia, a lawyer in private practice, challenging the validity of a provision of the constitution introduced in 2020 in relation to the selection process for judges and magistrates as well as the way the Judicial Appointments Committee, established by the constitution, conducted the procedure in April 2021 for the nomination to the president of candidates for vacancies in the judiciary.
The first plea that was raised by the government was inevitably one relating to juridical interest. Mallia had not applied for the post of judge or magistrate, so how could she have juridical interest in the traditional sense to challenge the validity of a constitutional provision or of a law?
This judgment can serve as the thin end of the wedge for a liberation from the old and ushering a new phase in human rights jurisprudence- Giovanni Bonello and Tonio Borg
The court has now declared, in December 2021, that, in constitutional cases, one could be a potential victim of a human rights violation. Mallia had not even committed herself to applying for the post of judge or magistrate in the future when the next vacancy arises but could still be considered a potential victim just in case she did.
A judgment following the same trend had been delivered some months earlier in the Ramblers case. The Ramblers Association was challenging the legal validity of granting, by direct order, to the hunters’ association a title of lease over tracts of public land at Miżieb “for a social purpose”. Before the organ of first instance, the NGO which challenged the social purpose of such grant had lost the case, owing to lack of juridical interest.
The Court of Appeal (Inferior Jurisdiction), without abandoning the juridical interest doctrine, interpreted the principle in such a way that an environmental NGO such as Ramblers possessed the juridical interest required to institute an action. The case is now pending on the merit but, at least, the NGO was recognised the right to institute the action.
Will this trend continue, giving a new and more liberal interpretation to the juridical interest rule? Only time will tell.
The merits of the Mallia case, which still have to be decided, involve an interesting legal issue. One of the members of the judiciary on the Judicial Appointments Committee, a serving magistrate, had abstained from participating in the selection process last April since she herself had applied for the post of judge.
Her vacancy was not filled by her fellow magistrates. Consequently, the slim inbuilt majority in the membership of the committee in favour of the judiciary (four judicial members as against three non-judicial members) mandated by the constitution was removed/prejudiced. Did this annul the selection process?
The applicant also objected to internal rules and guidelines which the committee had drafted and which, according to the applicant, were in direct contrast with the disqualifications laid down in the constitution itself. She, therefore, alleged that these rules and guidelines were ultra vires the power of the committee under the constitution.
Surprisingly, the court ruled that such an action could only be filed under ordinary law and not under the constitution. If the rules were alleged to breach the constitution, isn’t a constitutional case in perfect order?
We feel that, though there are serious objections to parts of this judgment, the novel approach towards juridical interest in constitutional cases is a sigh of relief and a breath of fresh air, opening avenues which were previously barred to non-governmental organisations and private individuals in challenging questionable measures or laws implemented by the government of the day.
This judgment can serve as the thin end of the wedge for a liberation from the old and ushering a new phase in human rights jurisprudence.
Giovanni Bonello is a former judge at the European Court of Human Rights. Tonio Borg is a former European Commissioner.