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In the good old days before Tonio Borg was Deputy Prime Minister and less taken up with proposing monuments for the “internati”, he was one of the most informative and eloquent lecturers in the areas of constitutional law and human rights.
I have no idea whether he still lectures, but in my days, he was one lecturer who could tear students away from the charms of lying around on campus or adding to the obscene graffiti etched into the wooden benches. An hour would fly past as he would reel off judgments about unjust requisition orders, the Blue Sisters case, infringements of the right to freedom of expression, and several constitutional cock-ups perpetrated by the Socialist government – yes, they were mainly Old Labour boo-boos – the Nationalists hadn’t yet followed suit.
It was easy for wide-eyed students sitting in on those interesting lectures to view the situation in terms of black and white – the monstrous Socialist government running amok mowing down Constitutional safeguards left and right, while everybody else suffered in silence awaiting the day of deliverance at the hands of the Nationalists. I still see evidence of this kind of reasoning in the letters pages of the newspapers today. Ever so often, somebody who suffered some form of injustice in the 1980s will write in to remind others of his ordeal. Usually these missives are headed “Lest we forget” and go on to exhort readers about the perils of supporting a government which is not a Nationalist one. I sympathise with the evident hardships that such people have experienced and I can see how they will always harbour resentment against the party which oppressed them. But it is extremely naive of them to consider the present administration as an entirely blameless, law-abiding one. It is not. And although there are no outward signs of the violent excesses of the Old Labour days, the Constitution still gets a good kicking – by the very same people who championed it yesteryear.
All this came to mind when reading reports of the parliamentary debates which took place last Monday. On the face of it, the report appeared to be a tedious legal discussion of a technical nature about what should happen on the expiry of temporary emphyteusis. In reality it was about legalised theft, the jettisoning of property rights and giving the Constitutional Court the middle finger. A little bit of background will put everything into context and show how the seemingly innocuous debate about Bill 90 is really a despicable attempt to amend and sustain a law which has been declared to be unconstitutional.
It’s actually a very long story but going back to what took place on 11 July 1979 is as good a starting place as any. On that date, the then Labour Minister of Finance Joseph Cassar was explaining why his government intended to pass a law amending the Housing (Decontrol) Ordinance. The gist of his argument was that many people had resorted to giving out property on emphtyeusis rather than renting in order to “evade” the restrictions of the rent laws. On the expiry of the term of emphyteusis, the property would revert to the owner, something which was not possible if the property had been rented out. You can understand why many people opted for emphyteusis rather than rent – who would be foolish enough to wave good-bye to his property by leasing it, or rather giving it away in perpetuity to a tenant and his successors for the price of a packet of Twistees or slightly more? As a result, the government was facing a situation where many emphyteutical grants were set to expire and the emphyteuta (the persons paying ground rent to the owner) would soon be constrained to find alternative accommodation. The common sense, free market approach to this would be to leave well alone. After all the emphyteuta had enjoyed the benefits of the contract and were fully aware that their time was up and it was time to move elsewhere. But the common sense (and just) approach was never one to triumph in Old Labour days. It was always trumped by what could over-generously be called “concern for the little man” and what would more realistically be called political expediency. The Labour government could not risk alienating a large tranche of its support base – the working class – by having many of them live up to their contractual obligations and finding housing which they would have to pay realistic prices for. Neither did it want to offer subsidised housing to the soon-to-be-dislodged emphyteuta. Instead it shifted the burden onto the owners of property let out on emphteusis. The infamous 1979 amendments allowed the conversion of temporary emphyteusis to perpetual emphyteusis or to rent according to the conditions specified in the law. Perpetual emphyteusis could be redeemed, so that the emphyteuta would be become outright owner. In effect it was outright dispossession for a ridiculous return.
Things went on in this vein until 3 October 2000 when the Constitutional Court presided over by Judge Ray Pace decided that the sections of the law which allowed the conversion of temporary to perpetual emphyteusis were null and without effect because they breached that section of the Constitution which prohibits the deprivation of property without adequate compensation. According to the court, the 1979 amendments authorised what was a de facto expropriation. The ground rent due to the owner, the formula for which was established by the same 1979 amendments was deemed to be miserly, as was the sum the owner would receive on redemption of the emphyteusis. Although an appeal was lodged from this judgement, it fell through on procedural grounds as a result of which the position is that established by the 2000 judgement. So, it is surprising, to put it mildly, to read The Times reporting Tonio Borg as saying that there was no Constitutional Court decision finding that the 1979 law granting tenants the right to convert a temporary emphyteusis into a perpetual one was unconstitutional. There is precisely such a judgment. It has been considered to be a final judgment as from last October and a copy of it has been ordered to be transmitted to the House of Representatives. Now if Nationalist Ministers of the permanently raised eyebrows at Labour misdeeds can blithely ignore the Constitutional court and sail on regardless, things have come to a pretty pass.
There’s more. The thing about laws which are badly drafted and which are shored up by all sorts of band-aid amendments because they have no rationale other then to get the government of the moment out of a fix, is that they are susceptible to legal challenge. Sooner or later they fall apart because there is only so much shoring up that politicians can do. Last year the appeal court decided that an emphyteuta could not convert a temporary emphyteusis into a perpetual one if the emphyteutical grant was given by someone who himself held on a title of perpetual emphyteusis. This judgement effectively restored the contract which had been entered into between two consenting parties, to that which it was before the government came galumphing in, substituting its will for that of the parties. A contract made for a definitive period of time was just that – temporary. Instead of taking note of the Court’s decision and sticking to starting paper wars about irrelevant monuments, Tonio Borg leapt into action and came up with Bill 90. Basically this extends the right of conversion of temporary emphyteusis to perpetual emphyteusis and proposes a little light tinkering with the formula established for the amount of ground rent to be paid. It is still nowhere near the return the owner of immovable property could hope to obtain under market conditions. But as Tonio Borg and Anglu Farrugia happily concurred – it would never do to have people ending up on the streets. Tonio Borg has conveniently forgotten the fact that transition periods can be imposed, doing away with these scenarios of mass homelessness. Also, why do tenants have to be granted the right to permanent emphyteusis which they can then redeem so as to own the place in full ownership? Why can’t they be granted rights of habitation and not effective ownership? The answer has nothing to do with law and everything to do with mathematics. There are more tenants than owners. The owners can presumably be relied upon to grin and bear it, as they have for all these years. Scare stories of Old Labour violence and Santian ineptitude can be rolled out come the election. They will vote Nationalist as they have always done or maybe they won’t vote at all. They will get the government they deserve. It will be Mintoff with velvet gloves, Mugabe with a feather-boa and without the physical violence. It will still mean an arrogant disregard of human rights. There are many ways to skin a cat - and to dismantle a constitution. |
