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

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MEPA and the politicians

times_of_malta196x703July 25, 2009

by Carmel Cacopardo

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Il-Parlament Malti

Il-Parlament Malti

Land use planning is a political process involving various disciplines and leading to policy decisions. The question to ask is: Who is to take the political decisions? My reply is clear and unequivocal: The policy decisions are to be taken by the elected politician.

As a nation we have come a long way from the corrupt 1970s and 1980s. But there is still much more to do. Mepa, notwithstanding its difficulties and problems, is (ironically) the most transparent public institution in the Maltese islands. This says a lot not just about Mepa but more about the sorry state of the other institutions!

Since inception, Mepa has been responsible for the drafting of land use policies, subjecting these to public consultation (not always in a satisfactory manner) and thereafter presenting its conclusions for the elected politician’s approval. Some of the ministers responsible for land use planning since 1992 have just signed on the dotted line. Others queried and insisted on changes prior to approving. No records are available yet as to what was changed as a result of ministerial insistence, notwithstanding that it has long been established that ministerial direction on policy ought to have been carried out in writing!

Lawrence Gonzi’s proposal that his office should take effective overall control of land use planning policy is thus no big deal. It is no revolution but just the final stage in the process of placing responsibility for policy where it belongs, on the politician’s doorstep.

The politician has been effectively responsible for this since Mepa’s inception, although this was conveniently camouflaged as it paid to promote the perception that Mepa was responsible, even though it was not!

The role of the politician in land use planning is not limited to approval of policy.

It is the right time to ask whether it is reasonable for two members of Parliament to sit on the Mepa board and take part in its deliberations and decisions. I believe it is time to rethink the role of MPs in the land use planning process. Their role should, in my view, be one of monitoring and ensuring that Mepa follows policy and legislation and generally be subject to good governance. This function could be exercised through developing the current role of the Parliamentary Committee on Development Planning into one which continuously monitors Mepa and the minister responsible for land use planning on behalf of Parliament. Such a role could include the receipt of reports of the Planning Ombudsman, the examination of these reports and ensuring that, while the necessary decisions are taken expeditiously, those responsible for mal-administration are held to account.

The minister responsible for Mepa on behalf of the government appoints the members of the Mepa board and the Development Control Commissions.

He should exercise this responsibility subject to the parliamentary committee being in a position to vet the nominees through a public hearing organised with the specific intention to establish their suitability for the post. I am certain that some of those appointed to date would not have been found suitable for the post they were appointed to had the politicians’ choices been subject to parliamentary scrutiny.

The composition of the Mepa board should be revised to reflect its responsibilities. The EU Commission had remarked in a post-accession negotiation document that, when environmental responsibilities were added to those of land use, planning the composition of the Mepa board was not reconsidered in the light of its “new” responsibilities. Seven years down the line the situation is unchanged.

The proposal to have civil society, possibly through eNGOs (environmental NGOs), involved in the Mepa decision taking, while valid, needs some rethinking. It is not only politicians and practising professionals who may be subject to a conflict of interest. Even those active in eNGOs may at times have to face their own conflicts of interest. With this in mind I do not think it would be a good idea to appoint as a Mepa board member any current activist in a civil society organisation. I would prefer that the government appoints someone who, while enjoying the confidence of organised civil society, is not on the frontline.

Dr Gonzi is still insisting that Mepa should retain both its current functions, namely land use planning and environment protection. He has only brought forward one reason in justification: the resolution of conflicts between the two functions. Now this is a very myopic way of developing our institutional capability even in view of the public utterances in favour of sustainable development. There exist countless conflicts between land use planning and the protection of the environment. So far, few have surfaced as they are being resolved in-house by the muzzling of the environmental function of Mepa, which has not been allowed to develop in line with Malta’s responsibilities in a post-EU accession scenario.

The author, an architect and civil engineer, is the spokesman on sustainable development and local government of Alternattiva Demokratika – the Green Party in Malta.

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