The forthcoming Constitutional Convention, whenever it happens, is an opportunity to entrench green rights in the Constitution. This can be carried out through spelling out such rights unequivocally during the long overdue constitution reform process.
Environmental rights should be spelled out just as clearly as property rights. Our Constitution perversely protects property rights but then does not protect our right to clean air or the access to clean water. Nor does it protect our biodiversity or our landscape or any other environmental right. Individual rights are somehow protected but then the rights of the community are not even given a mention.
When one considers that the rights of the present generations are very poorly protected no one should be surprised that future generations are completely ignored in our basic law.
While this has been going on, Malta has on an international level been insisting on protecting the seabed (1967), the climate (1988) and future generations (1992). Notwithstanding the efforts made on an international level, however, there was no corresponding local effort to put in practice what we preached in international fora.
Malta’s Constitution contains a set of guiding principles in its Chapter 2 which are intended to guide government in its workings. One of these guiding principles relates to environmental protection. Originally enacted in 1964 it was amended recently.
Yet there is a catch. Towards the end of this list of guiding principles our Constitution announces that these principles cannot be enforced in a Court of Law.
This Chapter of our Constitution is modelled on similar provisions in the Irish and the Indian Constitutions. As explained in Tonio Borg’s A Commentary on the Constitution of Malta, however, the Indian Supreme Court has over the years interpreted similar constitutional provisions as the conscience of the Constitution, a real guiding light. It does not make sense to proclaim basic and guiding principles, declare that they should guide the state but then stop short of having them enforceable in a Court of Law.
Unfortunately, the same attitude was adopted when drafting land use planning and environmental legislation. This legislation contains similar provisions: the announcement of basic guiding principles which are not enforceable in a Court of Law.
In its submissions to the Constitutional Convention, Alternattiva Demokratika-The Green Party has proposed revisiting this Chapter of the Constitution in order that it would be possible to ensure that government follows the guiding principles at all times instead of selectively.
In other countries it is possible for civil society to take legal action to ensure that government carries out its environmental responsibilities adequately and at all times.
Two particular examples come to mind.
The first is legal action in the United Kingdom by environmental NGO Client Earth relative to the UK government’s lack of action on the formulation of an air quality masterplan. The matter ended up in a Supreme Court decision which instructed the UK government to act and established the parameters for such action including the relative timeframe.
The second example comes from Holland and concerns climate change and the environmental action group Urgenda Foundation which went to Court to force government’s hand on the establishment of reasonable climate change emission targets.
In both the above examples, and probably in many others, government action was far below the expectations of civil society. It is right that the Constitution should provide us with the necessary tools such that whenever government fails to live up to the Constitutional benchmarks, (be these environmental or any other) then, civil society may call government to order.
To date we depend on the EU Commission as a fallback position, but the EU Commission, unfortunately, does not always live up to what we expect of it. It has let us down many times. The Constitutional Convention is the only forum possible, so far, through which this constitutional deficiency can be corrected. It is about time that our green rights are entrenched in the Constitution.
published in The Malta Independent on Sunday: 6 September 2020