Recently, our courts decided two cases which appeared to have detached themselves from the traditional judicial doctrine of juridical interest or legal standing in public law actions.
The first was that of Anna Mallia, where the court decided that applicant was a “potential victim” of a human rights violation. Mallia had challenged the constitutional validity of the new mechanism for the appointment of members of the judiciary.
Even though she had not applied in the last selection process for the post of judge nor did she commit herself to do so in the future, the court, applying the more liberal interpretation of ‘victim’ under the European Convention of Human Rights by the Strasbourg court, decided that applicant had sufficient interest to file a constitutional human rights case.
That judgment, in December 2021, was preceded by another where the Court of Appeal (Inferior Jurisdiction) ruled that Ramblers, an environmental non-government organisation, did have legal standing to challenge the validity of a grant of government land by title of lease by the Lands Authority to the Hunters and Trappers Federation... even though Ramblers did not have a direct personal interest in the litigation in the traditional sense.
The fact is that these developments now seem too good to be true.
In January 2022, a court of first instance delivered judgment in the Cassola case. Arnold Cassola, an independent candidate in the next general election, challenged the constitutional validity of the new gender corrective electoral mechanism in that it discriminated against political parties other than the two main ones. He argued that such discrimination discouraged female candidates from contesting the general elections except on the platform of the two major parties.
Whether that is correct or not remains to be seen as the court did not pronounce itself on the merits.
It simply blocked plaintiff’s case since he did not enjoy “legal standing”. Applying the traditional notion of direct, actual and personal interest, it held that Cassola, being male and not female, could not file such an action.
If the notion of interest were to be interpreted in the light of European court case law, as applied in the Mallia judgment, there is no doubt that, irrespective of whether applicant’s claims are valid or not, he did enjoy sufficient interest to file a constitutional case.
This return, following a pleasant and lucid interval, to the old restrictive interpretation of juridical interest as if the Mallia and the Ramblers cases had never been decided, was very recently repeated in the Life Network case. Indeed, after moving two steps forward, our courts regressed two steps backwards.
A network of pro-life organisations challenged the decision by the Superintendent of Public Health which, on the advice of the Medicines Authority, had allowed the morning-after pill to be put on the local market. The Network claimed that this medicinal product destroyed a fertilised egg and, therefore, was not allowed under our Criminal Code, which considers abortion to be a criminal offence.
The judgments made the law abiders impotent
We shall not enter into the merits of whether such claim is justified. The point is: does Life Network, as an NGO active in the pro-life field of action, have the right to institute such action? Applying the principles laid down in the Ramblers and Mallia judgments, the pro-life NGO certainly had sufficient interest to file a judicial review case against the competent authority.
The court preferred to deliver a preliminary judgment solely on this point and refused to hear evidence until this issue was settled. It took five solid years for the court to decide, in a preliminary procedural judgment, that Life Network did not enjoy legal standing to contest the validity of the public authorities’ actions.
Assuming, for the sake of argument, that the applicant association is right, this means the government is allowed to break the law with impunity, without any possibility of challenge or overview by the courts. For who would enjoy direct, actual, personal interest to challenge the law? The producers of the pill? The woman who takes it? Whom else? No one!
This judgment is a dangerous precedent for all NGOs which rarely have a direct personal interest in any matter that is the subject of judicial proceedings instituted by them. They usually have a moral, environmental, public-spirited, solidarity interest, or merely a civic one, to uphold the rule of law and see that it is not abused with total impunity: they do not, and cannot, have a direct, personal, actual one.
The access to a court is, therefore, blocked to NGOs whose aim it is to see that the authorities respect the laws of the land. These judgments have protected the right to break the law rather than those who want to control this abuse. They have made the law abiders impotent and granted immunity to real or potential lawbreakers.
All this is done in the name of an irrational misunderstanding of the very basics of law. To require a direct, personal and actual interest in a plaintiff proposing personal civil litigation makes very good sense in traditional private lawsuits.
But, sadly and uncritically, some courts have exported wholesale and indiscriminately those concepts appropriate to private law to the realm of public law, where they do not belong and where they only destroy the very basis of legal protection of the community.
They are using the keys of one door to try to close another. It is like tackling a crisis in international law by applying the Civil Code on easements. It is indeed a sad day for the rule of law in Malta. The sooner the courts revert to the Ramblers and Mallia rulings, the better it is for the rule of law and all of us.
The judge-made doctrine of juridical interest may be given a new meaning by the courts once it was created and applied by them. The solution is not jettisoning the doctrine altogether but giving it a more liberal meaning in public law actions, disengaging such notion from the shackles of private-law restraints when it comes to deciding cases of judicial review of government actions.
Indeed, in the case of actions contesting the validity of laws that apply to everybody (as different from a decision which applies only to a person or organisation), all citizens should have the right to institute such an action.
The sooner this is done, the better for the rule of law.
Kevin Aquilina is professor of law at the University of Malta. Austin Bencini is a constitutional lawyer. Giovanni Bonello is a former judge of the European Court of Human Rights. Tonio Borg is a former deputy prime minister and European commissioner.