In private law, for the plaintiff to propose any action, he must prove ‘juridical interest’ which is personal, actual and immediate. This makes perfect legal sense. Actions relating to succession, property rights, issues over title to land should only be proposed by persons who have a direct personal interest in the case.

This doctrine – which is not found in any express legal provision but which has always been pronounced by the courts – has been blindly applied also to actions in public law. For instance, in 1988 when Royal Navy ships visited Malta, a group of environmental organisations requested the courts to stop that visit on the ground that the presence of military vessels in Malta would be in breach of the neutrality article in our Constitution. They lost the case because the courts declared that applicants had no juridical interest in the matter. So who had? The government which invited them? The captain of the visiting ships?

I have no doubt that on the merits, plaintiffs had no case. But to reject their case on the basis of juridical interest, or what in English law is referred as legal standing, has facilitated the non-enforceability of parts of our supreme law.

Applying these 1988 judgments to other scenarios, who would have juridical interest if the President, on the advice of the Prime Minister, were to appoint as minister a person who is not a member of Parliament, even though the Constitution requires that members of the Executive have to be members of the legislature? No one.

Similarly, if a judge or magistrate were to be appointed to office even though the requirement relating to the statutory period of practice as advocate has not been fulfilled, is it possible that no citizen may, in the public interest, commence legal action so that the government abides by the supreme law of the land?

The blind application of a strict notion of juridical interest in constitutional actions has rendered certain sections of our Constitution unenforceable.

Now it is true that in constitutional human rights actions, the law provides that applicant has to prove that a breach of human rights contained in Chapter IV has been committed in relation to him; and the European Convention on Human Rights requires that the applicant has to be a victim of a violation of a provision of the Convention.

However, the European Court of Human Rights has given a liberal interpretation of the term ‘victim’. Consequently, a person was admitted as applicant challenging certain surveillance laws in Germany which violated his right to privacy even though he did not produce any proof that the legislation was to be applied in his regard. A women’s rights non-governmental organisation in Ireland was admitted before the court to object to an injunction issued by an Irish court prohibiting publicity regarding abortion outside Ireland, even though none of its members intended to perform an abortion abroad. Two unmarried sisters were allowed to contest an inheritance tax which would be applied in their regard in the case of their eventual demise, even though they were still alive and kicking. Similarly, legislation regarding the prohibition of homosexual acts in private was challenged by a gay couple even though no criminal prosecution had been initiated in their regard.

Is it possible that constitutional actions were easier to propose when we were a colony than now that we are independent and members of the European Union?

In Malta such actions would have been struck down on day one on juridical interest grounds.

What is worse is that the nefarious application of this doctrine in public law, particularly in the area of judicial review of administrative action, is limiting court scrutiny of government actions and, consequently, of possible abuse of power or illegal practices by the government.

In English law, for some time now, the courts have required only “sufficient interest” for plaintiff to initiate proceedings against the government. Consequently, when a case was initiated in the UK objecting to the triggering off of article 50 of the European Treaties to affect Brexit without legislative intervention, the action was commenced by financial services adviser Gina Miller and hairdresser Deir Dos Santos, the latter even having voted in favour of Brexit! Thanks to the civic interest of these public-spirited citizens, the courts ruled that for article 50 to be applied, a special law had to be enacted by the Westminster Parliament.

Had a similar case occurred in Malta, I am sure our courts would have required the hairdresser to prove that as a result of Brexit his income would be affected... and that fewer clients would frequent his barber shop!

The development of English common law in this regard has allowed several actions by persons who have no direct juridical, personal interest in a case, but who feel that the government is not abiding by the law in its actions. Consequently, Greenpeace were allowed to challenge a decision  regarding nuclear- powered stations, the editor of the Sunday Times was permitted to contest the ratification of the Maastricht Treaty and a non-governmental organisation was allowed, with success, to challenge the granting by the government of overseas aid in building a dam in Africa.

As far back as 1916, the English courts were already allowing public interest actions without the need of proving juridical interest. In one case in 1916, during World War I, a Scottish maverick was allowed to challenge the appointment of two persons to the Privy Council who were of German and Jewish descent. He did not succeed in his action but was allowed to propose it.

In Maltese public law, it is lawful for the courts, even after Independence, to apply English common law whenever we have a void, a lacuna in our public law. For decades the common law rules on judicial review of administrative action were applied by the judiciary in Malta, until in 1995 these rules were contained in a Maltese statute.

So what is stopping the Maltese courts from applying English common law on legal standing, which allows any person who can prove sufficient interest in proposing an action against the government from doing so, without requiring him to prove direct, actual and juridical interest?

One last parting shot. In 1953, a court in Malta forced Mabel Strickland to vacate her seat in the legislature for entering into a contract of supply with the government. The action was proposed by Professor Galea, the leader of her former party, with whom she had quarrelled. Plaintiff in that action had no juridical interest, only a political one. Is it possible that constitutional actions were easier to propose when we were a colony than now that we are independent and members of the European Union?