When a subsidiary law breaches a primary law

On 4 October 2017, PN MPs David Agius and Stephen Spiteri, two Nationalist Party MPs, tabled a private members Motion, Motion No. 66, in the House of Representatives. They proposed an amendment to the Leave for Medically Assisted Procreation National Standard Order, 2017 (Legal Notice 156 of 2017).

The motion requested that the words ‘prospective parents’ and ‘medically assisted procreation’ in the Legal Notice be defined in terms of the Embryo Protection Act, Chapter 524 of the Laws of Malta. The latter primary law, enacted by Parliament in 2012, defines ‘prospective parents’ as meaning ‘either of two persons of the opposite sex who are united in marriage, or who have attained the age of majority and are in a stable relationship with each other’. In other words, this definition (a) applies only to (i) a heterosexual married couple, whether married by the Catholic Church or by a Marriage Registrar in terms of the Marriage Act, Chapter 255 of the Laws of Malta; or (ii) two heterosexual cohabiting persons; and (b) excludes homosexual couples who are (i) not married together, (ii) in a civil union or (iii) cohabiting together.

On the contrary, the definition of ‘prospective parents’ in Legal Notice 156 of 2017 is more embracing as it means ‘two persons who are united in marriage, civil union, cohabitation, or who have attained the age of majority and are in a stable relationship with each other’. What is purposely excluded under the Embryo Protection Act is intentionally included under Legal Notice 156 of 2017.

Motion No. 66 raises an issue of conflict of laws. On the one hand, the Embryo Protection Act restricts recourse to in vitro fertilisation to heterosexual married or cohabitating couples, whilst the subsidiary law made under the employment law is wider in purport as it allows homosexual employees to utilise paid vacation leave up to 100 hours for the purpose of submitting oneself to in vitro fertilisation procedures abroad.

The issues that arise are (a) whether there is a conflict of laws between the primary law and the subsidiary law; and (b) whether the subsidiary law – which, after all, is made under a different law other than the Embryo Protection Act – can still be made this notwithstanding.

Before answering these questions, it must be admitted that the matter raises more issues than these, though the main issues are the hierarchical nature of the law and public policy. If Parliament has decided to restrict in vitro fertilisation to a heterosexual married or cohabitating couple, can a delegate (in this case a Minister) – though under a different law – go beyond Parliament’s mandate and allow other persons not contemplated by the Embryo Protection Act to avail themselves of such leave facility? Can a distinction be drawn between IVF services in Malta regulated by Maltese Law and IVF services offered overseas regulated by a foreign law? Cannot a person who does not qualify under the Maltese law exercise the right to have IVF treatment abroad?

A subordinate authority to Parliament cannot make subsidiary legislation which runs counter to a primary law, even if that subsidiary law is made under any other law which is not the one to which its subject matter relates. In the case of Louis F. Cassar noe v. Prime Minister the Civil Court, First Hall, had annulled a subsidiary law which ran counter to a primary law. The same reasoning equally applies here even if the subsidiary law is made under another law which is not the Embryo Protection Act. This is because no subsidiary law may run counter to a primary law. Subsidiary laws are intended to supplement, not replace, primary laws.

Moreover, when a Minister is delegated law making powers by Parliament, s/he cannot use those powers to usurp Parliament’s law making function in breach of the doctrine of the separation of powers. A Minister may breach a primary law only and only if, and solely to the extent that, s/he is authorised to do so by an express provision in the primary act. To act otherwise, as is the case of Legal Notice 156 of 2017, is for government to subvert the authority of Parliament, thereby bringing itself in breach not only of the doctrine of the separation of powers but also of the rule of law.

Furthermore, the issue of public policy plays an important role here. If it is Malta’s public policy (as enshrined in the Embryo Protection Act) to offer in vitro fertilisation only to heterosexual couples, whether married or in cohabitation, then if a subsidiary law extents the scope of application of the Embryo Protection Act to non-heterosexual couples, then there is a breach of Malta’s public policy.

Government might argue that the Embryo Protection Act is discriminatory against same-sex couples. However, even if – and only for argument’s sake – this argument is conceded to be correct, this course of action can never justify the Minister in ignoring the will of Parliament, even if the Minister enjoys the backing of Cabinet on this matter. To allow such ministerial reasoning and action – to change a law which is allegedly discriminatory – without going through the proper channels (Parliament or the courts to amend the law or have it declared unconstitutional or in breach of human rights) is arbitrary and in breach of the doctrines of separation of powers and the rule of law apart from injecting an element of uncertainty in the law. Otherwise all primary laws can be brought to naught if a minister, through a legal notice, elects to amend or contravene a primary law. The whole edifice upon which the whole law stands will crumble into pieces and despotic rule will replace indirect democracy.

Unless and until such allegation of discrimination is judicially ascertained or legislatively changed, it is the definition in the Embryo Protection Act which ought to prevail for the purposes of Legal Notice 156 of 2017. This implies that this Legal Notice should be interpreted narrowly to apply only to heterosexual married and cohabitating couples to reconcile it with the will of Parliament. To do otherwise is to opt for the law of the jungle, not for the rule of law. But then who cares about the rule of law in Malta? Surely not government or the Opposition MPs who support Legal Notice 156 of 2017!

Professor Kevin Aquilina is the Dean of the Faculty of Laws at the University of Malta.

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