Judge throws out morning after pill case, says pro-life groups lacked required juridical interest

A judge has dismissed a case filed in 2017 by pro-life groups militating against the introduction of the morning after pill, ruling that they lacked the juridical interest to file that type of case.

Life Network Foundation and Save the Embryo Protection Act (Malta) had filed the case against the Superintendent of Public Health, arguing that the health authority's decision to issue licenses for emergency contraceptives was in breach of the Criminal Code outlaws abortion, and the Embryo Protection Act. 

But in a judgment on the legal action filed by the plaintiffs, handed down today by the First Hall of the Civil Court, Mr Justice Joseph R. Micallef, himself famously a staunch Catholic, dismissed the plaintiffs’ claim.

The judge noted that the case was filed as a judicial review of an administrative action. The activists complained that the Superintendent of Public Health had been legally wrong to allow the sale of products that they opined destroyed life after conception.

The Superintendent had contested the claims, arguing that the plaintiffs lacked the juridical interest to file the action as the administrative action complained of had not been made in their regard. It was also argued that the legal action had been framed as an action popularis- an action filed by a member of the public in the interest of public order, which was not envisaged under the law they quoted.

Mr. Justice Micallef addressed the first contestation, that of juridical interest, pointing out that such an interest was necessary to file a successful court case and had to be borne of “an actual state of breach of rights, which breach must consist of a positive or negative condition that undermines, or tries to undermine, a right belonging to or deserving of to the plaintiff.”

The court had to be satisfied that this interest existed, and whether it’s existence preceded the filing of the action, said the judge. “The interest of the plaintiff must be evident from the act itself with which the case is opened, and although the motive of this interest need not be mentioned in the judicial act, it should emerge from the evidence…”

The law stated what an administrative act was, said the court, defining it as " …the issuing by a public authority of any order, licence, permit, warrant, decision, or a refusal to any demand of a claimant, but does not include any measure intended for internal organisation or administration within the said authority.”

The judge pointed out that if an action doesn’t fall under this definition, he would not be able to investigate it under the legal disposition cited by the plaintiffs.

“Not every written document issued by a public authority constitutes a ‘decision’, “ said the judge, explaining that for it to be so, it would have to resolve a dispute or complaint, by specifying that it was the final opinion of the public authority about that complaint of request.

The Superintendent of Public Health had told the court that no such request had been received and addressed by her offices, the action was not subject to the judicial review requested.

On their part, the plaintiffs submitted that their juridical interest emerged from the fact that, “as persons who have and may have children, they have every interest that the life of children is protected.”

The judge noted that the plaintiffs had made it very clear that their aim was “that the pills named in their court application no longer remain present in Malta as they have the potential of causing an abortion and therefore give rise to an evident breach of the relative provisions of the Criminal Code, the Embryo Protection Act, the European Convention on Human Rights and the Convention on the Rights of the Child.” The application went on to argue that their interest was “a public one in that it sought to safeguard human life, and in light of this, it is submitted that juridical interest is not necessary.”

Mr. Justice Micallef, after considering the arguments put forward, ruled that the defence raised by the Superintendent was correct, as the acts of the case showed that the foundation had voiced its concerns to a Joint Committee, which was a distinct and separate entity from the Superintendent. That committee had eventually failed to reach a conclusion about the use of emergency contraception and only issued a list of recommendations for the Authority’s consideration.

The Superintendent’s actions had not been aimed at the plaintiff foundation and at no stage was evidence exhibited to show that the foundation had made any requests to the Superintendent for investigation.

“The decision taken by the Superintendent did not put aside the interests of the persons represented by the foundation. To the contrary, the measure attacked addresses the interests of those women who, for some reason or other, choose to avoid getting pregnant.”

The judge said that the situation would have been different had the action been filed by such persons because they disagreed with the restrictions which might have been imposed in the administration of the medicinals in question.

The argument that some of the plaintiffs might have children one day and therefore had an interest in protecting them was dismissed by the judge, who pointed out that the action was contesting a measure that put medicinals on the market and did not force anyone to use them.

Neither did the plaintiffs show the existence of any law giving them the legal standing to attack a measure introduced by the Superintendent using that office’s legal powers, said the judge, before pointing out that had the plaintiffs framed their arguments to include considerations and legal developments which had occurred in different jurisdictions over time, this argument could have led the court to set aside the juridical interest argument, “if the same plaintiffs can show that the measures attacked by them is a matter of public interest.”

The court highlighted the fact that an action for judicial review of an administrative action required the plaintiff to demonstrate a personal, legal and actual interest in the administrative action being impugned.

In addition, the judge said that the plaintiffs were not attacking the validity of a law, but only a measure authorising the sale of certain medicinals to persons who want to purchase them. Once again pointing out that the case was exclusively filed for judicial review of an administrative action, the court said that the case should have been started by means of a sworn application before the court, in the manner laid down by law. The court could not conduct a judicial review of the intrinsic value of a law, as that did not constitute an “administrative action,” said the judge, upholding the Superintendent of Public Health’s defence.