No political will to publish building codes, Sofia inquiry hears

The political will to publish building codes which had been ready for over four years had vanished after the last general election, the public inquiry set up in the wake of the death of construction worker Jean Paul Sofia was told today.

Perit Martin Debono who had been a technical advisor to BICC in 2013, as well as a technical advisor for safety and the setting up of building codes testified at his own request. 

Judge Joseph Zammit Mackeon asked the witness about a story published by the MaltaToday earlier today about Michael Ferry, who said that the BCA has jurisdiction over all freestanding structures, while the BCA itself is saying that they aren’t. “Michael Ferry doesn’t just know the law, he wrote it.” pointed out the witness.

Asked about legal loopholes in regulating Development Notification Orders on government property for industrial projects, Debono replied that “sometimes laws tend to be made with back doors to be exploited.”

“Full planning applications have many requirements that must be satisfied. The board questions these things and many people can ask questions. DNOs bypass all of these,” he said. “The BCA is not the planning authority, where a permit may be issued, even in dubious circumstances. If the BCA does this people will die.” 

The building code has been ready for some time, he said, explaining that the code had been drafted as a law and can be amended by a standing committee, if necessary.

The current building standard is the unquantifiable “according to skill and arts,” he pointed out, which would be replaced by measurable standards if building codes were to be introduced.

Debono said that BICC had been working on the building codes for around four years, and had subsequently submitted the completed code to the ministry, “led by Ian Borg and Chris Agius at that time.” “They would constantly press us for progress. The current minister, Zrinzo Azzopardi does not.”

Although the codes were to be sent to the BCA for publication, stakeholder and public consultation, only unofficial stakeholder consultation had taken place in the end.

The building codes were ready before 2020, he said. “The BCA… after the election they were shelved. Guidance documents based on them were issued to help architects adapt to the changes.”

“What periti aren’t understanding is that this is a great asset to them… it is the biggest defence that an architect can have: that he followed the code.”

The trouble had originated from the ministry, he said. “The BCA CEO Jesmond Muscat told me that we had already burdened developers enough… he is not a technical person, so the arguments went a bit over his head.”

4,000 workers in the construction industry had been issued skill cards, he said. Asked by inquiry chairman Joseph Zammit Mackeon whether he knew how many construction workers were currently registered, he replied that according to Jobsplus, the figure stood at 19,000. “So, after deducting the 4,000, there are 15,000 uncertified workers in the country,” he said, explaining that construction workers “are forced to be jack of all trades, mixing concrete, laying shuttering, cutting stone.”

Lawyer Therese Comodini Cachia asked the witness whether the skilled workers registry was accessible to the public. It was not, he replied. “They are using the excuse of data protection.”

The political will to create building standards no longer appeared to be there, he said. “From the General Election onwards, everything stopped.”

Activist describes ‘a system designed to fail’

Activist Wayne Flask was also amongst the witnesses who testified today. He exhibited a document, together with related reference material, which summarised a number of court cases dealing with incidents in the construction sector. 

These were caused by the system which the inquiry is currently investigating, he said. “They are practical examples of much of what has been said in this inquiry over the past weeks.”

“These cases were brought to my attention over the past months by the people directly affected, people who are suffering enormous and systemic injustices, where besides the trauma that accompanies tragedy, they are also encountering resistance from the authorities themselves.”

In order to understand individual construction-related tragedies and incidents, one first must understand the general context in which they happen, Flask said.

He pointed to the tragic death of 71-year-old Karmenu Micallef, killed in February 2022 after being run over by a truck driven by a colleague of his in Birzebbugia. Members of the victim’s family had immediately rushed to the scene after hearing about the incident through the media, finding representatives from the site’s insurance company and one of the directors of the contractor, GP Borg Ltd. already at the scene.

The driver was charged with involuntary homicide. During the compilation of evidence, a court-appointed expert had confirmed that the truck was too wide for the road.

Micallef’s family had raised the point of whether any potential liability on the part of the defendant’s employer was being considered by the court, to which the defence had objected. The presiding magistrate had told them that the direction taken by compilation of evidence was a decision to be made by the prosecution - the police in this case - and not the victim, Flask said.

“Then, in a court sitting last May, we heard the frankly shocking fact that the death of Karmenu Micallef had been classified as a traffic accident. This meant that the OHSA did not need to intervene or report about this tragedy, despite the fact that Micallef had been at his place of work when he died.”

Flask asked why the police had classified the incident as a traffic accident, and why the insurer and the developer had been on the site of the incident before the family. In his written submissions, the activist also raised other questions, asking why the defendant’s lawyer had opposed summonsing a representative of the company which employed Micallef, GP Borg, to testify and why the presiding magistrate had stopped pertinent questions from being asked.

“Another example of how the system is designed to fail is that of the Montebello family from Fleur de Lys,” Flask said. “In February 2021, construction began on a five-storey block of flats next door to them, which meant they had to move away for 11 months.” 

Matthew Montebello, who had taken David Psaila, the architect and developer, to court after a project of Psaila’s next door to his home threatened to cause its collapse, had later been arraigned on trumped up attempted murder charges after pushing Psaila out of his house. Montebello was eventually cleared due to lack of evidence, Flask said. “This was just one of the acts of revenge against them.”
Two €5,000 fines, one issued to Psaila and another issued to contractors Faceworks for endangering Montebello’s home and deviating from the submitted method statement were later overturned on a technicality, he added. The official who had issued the fines and stop notices, Ivor Robinich, was transferred out of the BCA into another entity under the remit of the same ministry.
“The BCA is not serving as a deterrent,” Flask said. “The ease of getting out of BCA proceedings means that there are loopholes being exploited. What point is there in having an authority where those who do their job end up being fired from it?”
“Three years after Miriam Pace’s death, the architect involved is still working as an architect and the contractor is receiving big contracts from the government.”
“The perit who couldn’t find the Montebello application in 2021 is the same perit who wrote an article in the MaltaToday about it two years before and who later drafted the law setting up the BCA - Robert Musumeci,” Flask said. 
“Miriam Pace’s widower is now employed by the BCA and Matthew Montebello was also offered a government job,” the witness went on, describing the construction industry as “a big money laundering vehicle, unregulated, and exploiting its workers.”

“The decisions are political. Those about the MDA, the composition of boards, the relaxing of building standards and those relating to enforcement are political," said Flask, reminding the inquiry that Castille often advocates for lower safeguards under the guise of less bureaucracy.  

On a radio program discussing Jean Paul Sofia’s death, Malta Developers Association head, MIchael Stivala had said that “everyone wants more regulation, but more regulation means higher prices,” Flask pointed out. He submitted that Stivala had bought shares in insurance intermediaries in order to weaken the insurance lobby which does not want to be forced into insuring “cowboys.”

“This is nothing but a game to stop the reform process,” Flask told the inquiry board, pointing out that at least two members of the MDA board have had fatal accidents on their construction sites. “It is embarrassing.” 

BCA was not set up as a regulator and current standards are nebulous - union official

Engineer David Spiteri, secretary general of the public sector architects and civil engineer union UPISP also gave evidence in today’s sitting.  

“The law doesn’t give [BCA] inspectors much room to intervene if a building is not built in accordance with the ‘craft and art’ of construction, because the law puts the onus on the architect and the contractor,” he explained.

“The BCA was introduced as if it was an answer to problems. But it was not set up as a regulator. Before it, there was the building regulation office, a legally set up regulator. What happened was that when the law was introduced, the regulator was removed as a government department and became a distinct legal entity.” This meant that it would not necessarily be bound by the regulations of the civil service, he said, explaining that the upshot was reduced regulation and grievance procedures for irregularities. “The authority is made up of people. If the recruitment is not done properly then there is nothing.”

Building inspectors need to have a form of building code as a point of reference, which the inspector also needs to know, as well as a law empowering him to enforce it, he said. Understanding these codes and laws required more than just the five O levels currently required, argued the engineer. “The authority can’t just train them itself.”

“Self-regulation plus commercial pressure equals disaster,” the witness said, pointing to the implosion of the Titan submarine in June this year as an example.

“Humans have an optimism bias which reassures them that they know what they are doing, and are safe, even when they are not.”

“I don’t think a contractor says ‘uwija billi jmutu erba minn nies’. He says ‘I have 20 years of experience and never had anything bad happen, so these busybodies should stay out of my business’.

“You either starve or play Russian roulette. That is the situation at the moment.”