Greening the Constitution

Chadwick Lakes 02

Alternattiva Demokratika – The Green Party –  is in agreement that 50 years after its adoption Malta’s Constitution needs to be updated.  However such an exercise, as emphasised in AD’s 2013 electoral manifesto, should be carried out with the direct involvement of civil society. The Constitution belongs to all of us.

There are a number of issues which require careful consideration. In AD’s 2013 electoral manifesto at least fourteen such issues are identified. They vary in scope from electoral reform to widening the issues in respect of which discrimination is prohibited, by including protection from discrimination on the basis of sexual orientation. AD also proposes the introduction of a Constitutional provision in favour of a balanced budget, thereby ensuring that government is forced to discard budget deficits and consequently to control the spiralling public debt.

One very important issue is the need to entrench environmental rights and duties in the Constitution. The proposed Constitutional Convention, supported by AD, should aim at Greening the Constitution. That is, it should aim at addressing environmental rights and duties such that they are spelled out in unequivocal terms.  Environmental rights and duties should as a minimum be spelled out as clearly as property rights in the Constitution. They are worthy of protection just as the rights of individual persons.

Article 9 of the Constitution very briefly states that “The State shall safeguard the landscape and the historical and artistic patrimony of the nation.”  Further, in article 21 of the Constitution we are informed that this (and other safeguards) “shall not be enforceable in a Court” but that this (safeguard) shall be “fundamental to the governance of the country” and that it shall be the aim of the State to apply it in making laws.

It is not conducive to good governance to first declare adherence to specifc safeguards, but then specifically excluding the Courts from ensuring that such safeguards are being observed.

The strategy of announcing principles but then not providing the legislative framework for their implementation was also taken up in environmental legislation. In fact articles 3 and 4 of the 2010 Environment and Development Planning Act  announce a whole list of sound environmental principles. However  in article 5 of the same Act it is then stated that these cannot be enforced in a Court of Law!

When I had the opportunity of discussing the Environment and Development Planning Bill with Mario de Marco (then Parliamentary Secretary responsible for Tourism and the Environment) I had proposed on behalf of the Greens that the declarations  in articles 3 and 4 of the Bill should not be just guiding principles. They ought to be made enforceable by our Courts subject to the introduction of  a suitable transition. Unfortunately Dr de Marco did not take up the Greens proposal.

As things stand today, article 3 of the Environment and Development Planning Act announces very pompously that the government,  as well as every person in Malta, has the duty to protect the environment. Furthermore it is announced that we are duty bound to assist in the taking of preventive and remedial measures to protect the environment and manage resources in a sustainable manner.

Article 4 goes further:  it  states that government is responsible towards present and future generations.  It then goes on to list ten principles which should guide government in its endeavours.  Integrating environmental concerns in decisions on socio-economic and other policies is first on the list. Addressing pollution and environmental degradation through the implementation of the polluter pays principle and the precautionary principle follows immediately after.  Cooperation with other governments and entities enshrines the maxim of “think global, act local” as Malta both affects and is affected by environmental impacts wherever they occur.  The fourth guiding principle is the need to disseminate environmental information whilst the fifth one underlines the need of research as a basic requirement of sound environment policy.  The waste management hierarchy is referred to in the sixth principle followed immediately by underlining the requirement to safeguard biological diversity and combatting all forms of pollution.  Article 4 ends by emphasising that the environment is the common heritage and common concern of mankind and underlines the need to provide incentives leading to a higher level of environmental protection.

Proclaiming guiding principles in our Constitution and environmental legislation is not enough. Our Courts should be empowered in order that they are able to ensure that these principles are actually translated into concrete action.   Government should be compelled to act on the basis of Maltese legislation as otherwise it will only act on environmental issues when and if forced to by the European Union as was evidenced in the past nine years.

Greening the Constitution by extending existing environmental provisions and ensuring that they can be implemented will certainly be one of the objectives of the Greens in the forthcoming Constitutional Convention.

published in the Times of Malta 18 May 2013

AD on Government’s Environment Policy

During a press conference in Valletta, Michael Briguglio, AD Chairperson, said: ‘Alternattiva Demokratika is presenting its reactions to Government’s proposed environment policy. In a nutshell we believe that it would have been wiser if Government implemented the recommendations of the National Commission for Sustainable Development, which have been ignored by Government for over two years. A holistic and effective environment policy should be based on the concept of sustainable development through which environmental, social and economic considerations are given due importance in order to improve the quality of life of people and to protect species. This is precisely what is being proposed in our policy paper, which covers various areas’.
 
Carmel Cacopardo, AD Spokesman on Sustainable Development and Local Government said that AD’s detailed reaction to the National Environment Policy Issues Paper was presented to Parliamentary Secretary Mario de Marco yesterday during a cordial meeting.
 
AD, said Cacopardo, is of the opinion that environment policy and environment measures have to be buttressed by studies which analyse the economic, social and environmental impacts of the proposals. Environmental research is absent from the list of issues dealt with by the document government published for public discussion. This is not a surprise for AD as acting without analysing impacts a priori is this government’s preferred method of action as has already happened when the eco-contribution legislation was introduced.
 
Government has just announced that it is toying with the idea of introducing tax shifting by reducing taxes on labour and introducing a carbon tax. This proposal communicated in the pre-budget document is scant on details such that it is not at all clear what Government is considering. In addition no studies indicating targets, methods and impacts has been published. Nor is it known whether in fact any studies have been carried out. It is for this reason that AD has 15 days ago requested the release of studies on the “carbon tax” proposal in terms of the provisions of LN 116 of 2005 (Freedom of Access to Information on the Environment Regulations).
 
The use of economic instruments for environmental improvement should be the responsibility of the Ministry of the Environment and not of the Ministry of Finance. This would ensure that environmental objectives and not fiscal ones are the primary objectives when such instruments are used
 
The Issues Paper added Cacopardo does not consider a number of important areas of action such as : Light Pollution, Environmental Impacts of Organisations, CSR, environmental nuisance, land contamination, the role of civil society and eNGOs in environment policy formulation, access to environment information and environment research.
            
AD considers that in view of the large number of vacant properties a moratorium on large scale residential development is long overdue. The regulating of funding of political parties would also ease the pressure of the building development lobby on politicians.  
 
Press here to download full AD paper