The Criminal Code grants any person the right to challenge the inertia of the commissioner of police in instituting criminal action against any person reasonably suspected of having committed a crime.

Repubblika, a local human rights non-governmental organisation, filed an action before the courts of law to challenge the commissioner’s lack of action, in spite of a magisterial inquiry recommending that criminal action be taken. But the commissioner chose to ignore the magisterial inquiry report. 

Would anyone in his/her right senses come to the conclusion that Repubblika does not have a juridical interest to challenge the conduct of proceedings during the challenge litigation instituted by it in terms of the Criminal Code? Surprisingly, that is what the Civil Court First Hall did on January 20.

Any first-year law student knows that the time-honoured Latin maxim ubi ius ibi remedium is the cornerstone of a legal system based on the rule of law. If the law grants a right to challenge the lack of action by a public officer, the complainant is entitled to enjoy a right to a fair hearing in the determination of a civil right granted to him/her by law.

The recent judgment refusing Repubblika juridical interest turns everything on its head. Now, even if one enjoys a ius one ends up with no remedium.

The court told Repubblika: the law expressly gives you the right to report an alleged crime to the police. The law expressly gives you the right to challenge in court the inaction of the police to investigate and prosecute that crime. But, sorry, you have no juridical interest to do anything about those rights expressly conferred on you by the law. Your rights are to pay the court costs for having dared to exercise those rights. Now grin and bear it.

First of all, a distinction should be drawn between having a juridical interest, or what in English law is referred to as legal standing, on the one hand, and the question of whether, once one satisfies juridical interest, a case is valid on the merits. A person might well have juridical interest in a case but the court can still rule against him or her on the merits.

The court in the Repubblika case seems to have confused the two issues. It strangely came to the conclusion that Repubblika’s challenging proceedings did not amount to a “determination of civil right and obligation” according to Article 6 of the European Convention on Human Rights. Therefore, it concluded, there is no juridical intertest.

This reasoning is dangerous. Juridical interest in public law proceedings should not be given the narrow interpretation that the court has given in this case. While the concept of juridical interest is completely valid and necessary in civil, private law proceedings, when the matter to be decided appertains to public law, the interest need not be actual and personal.

The recent judgment refusing Repubblika juridical interest turns everything on its head

It is enough if it is “sufficient”. This interpretation has been applied in most civilised democratic countries where upholding the rule of law is not optional… but not in Malta.

Secondly, how come that the exercise of a right, expressly mentioned in the law, of requesting a court to order the commissioner of police to take action is not a civil right? Then what is it, a concession, a favour or a privilege? Is it an amorphous concept which dwells in the realm of the unintelligible? How, and on what authority, can a court erase a right expressly given by law? 

The right to a fair hearing applies to all proceedings before a court. Our courts have applied this right even to tax disputes even though a tax dispute is not strictly speaking a civil right and obligation. The Maltese Constitutional Court has rightly ruled that the way tax is collected gives rise to civil rights and obligations. A law requiring a huge amount of tax to be deposited as a requirement for access to an appeal from an ex officio assessment was consequently deemed to be unconstitutional.

If that is the case, how much more should challenge proceedings under the Criminal Code be considered an exercise of a civil right? One either has a right to institute proceedings or not. But if the law itself expressly grants that right, how come, then, such right is not recognised at all by the court as a civil right?

In substance, the court told Repubblika: your right to challenge in court the inaction by the police against persons suspected of criminal offences is not being denied. But it is none of this constitutional court’s business if you have to exercise that right in a kangaroo court, in a ‘court’ made up of your political enemies, in a ‘court’ run by the close relatives of your adversaries. This constitutional court believes that is perfectly okay and none of its business.  

Is this reluctance to grant an NGO access to the right to a fair hearing a fear of deciding on the merits a politically loaded case? One augurs that this is not the case. It is not the first time that such cases are postponed to an unspecified time in the future.

For instance, it took five years for a court of law to decide that a pro-life NGO did not have juridical interest to challenge a decision by a public authority to allow circulation on the market of a medicinal product which, in its view, was against the law without ever getting to the merits of the case.

Our judges need to bear in mind what Lady Hale, presiding over the Supreme Court in the UK, stated in the Miller case. Here the litigation hovered over the issue of whether the  government’s decision to prorogue parliament and, as a consequence, avoid debate on the Brexit issue was an eminently political issue to be exclusively decided by the executive or a legal matter to be decided by a court of law.

 Lady Hale said: “The fact that a legal dispute concerns the conduct of politicians or arises from a matter of political controversy has never been sufficient reason for the courts to refuse to consider it.” 

A person in Malta already faces difficult legal hurdles to challenge administrative decisions or have access to a court of law seeking redress for a human rights violation. For instance, even to challenge a law as unconstitutional one has to prove personal and actual interest in the matter. To now add to these obstacles, rather than remove them, is a serious matter, calling in question access to a court of law by any person.

The courts should, therefore, revisit their outdated interpretation of juridical interest in public law cases to do away with the inapplicable private civil law requirements of personal and actual interest and apply instead the public law requirement of sufficiency. Otherwise, the courts would outshine Pontius Pilate in denying justice to citizens.

Should we fight back the suspicion that some judges find this a convenient ruse to relieve them of their constitutional obligation to protect the rule of law and get rid of inconvenient ‘hot’ political controversies?

Kevin Aqulina was dean of the Faculty of Laws; Austin Bencini is senior lecturer in public law at the University of Malta; Giovanni Bonello is a former judge of the European Court of Human Rights; Tonio Borg is professor of public law  and author of several textbooks on public law.

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