Protecting the environment beyond the Constitution

This week, Prime Minister Joseph Muscat said that a new Labour government would enshrine the protection of the environment in the Constitution.

“The protection of the environment would be given weight and priority in every major governmental decision,” he said.  

However, when asked how exactly the protection of the environment would be defined, Muscat said he would be giving details about the proposal in the coming days. 

The move stinks of tokenism because it is yet to be seen whether land use issues and the loss of open spaces will violate the Constitution. It is also unclear how citizens can seek redress over the poor quality of air and water, and the constant erosion of the countryside.

The concept of a human right to a healthy environment is widely recognised in international law and endorsed by an overwhelming proportion of countries. Today, environmental rights are included in the constitution of more than 90 countries and in many cases this has translated into stronger environmental laws and landmark court decisions.

The notion of enshrining environmental protection enjoys cross-party support as Alternattiva Demokratika included the proposal in its draft joint manifesto it presented to the PN while the two parties were locked in talks to form a coalition. Although the talks fell through, it is thought that the PN agreed with this proposal, which included the protection of cultural heritage.

The proposal presented by the Greens said that courts would be given the authority to oblige the State to act.   

While such a move would be more than welcome, environmental protection should not be an area of discord but of consensus. All major parties present a common front in defending the financial services sector in Malta but unfortunately the same cannot be said about the environment, which at best is treated like some sort of Cinderella by the major parties. 

The jury is still out on whether enshrining environmental protection in the Constitution is enough.

On one side this can result in greater citizen participation in environmental decision making, increased accountability, a reduction in environmental injustices and a level playing field with social and economic rights.

However critics argue that constitutional environmental rights are too vague to be useful and are likely to be ineffective. Critics also warn that this could shift responsibility from legislators and politicians to judges. 

Furthermore, Muscat said that a new Labour government would commit itself to a legislature where no public projects on Outside Development Zone (ODZ) land are implemented.

This comes a few days after Muscat himself announced plans to construct a racing track. According to the national broadcaster, the racetrack will be built on a tract in Ta’ Qali which technically falls under the ODZ designation. 

The racetrack is expected to include ancillary developments like a hotel and educational facilities, which will have a deep impact on the area which is a favourite spot for families.  

Following the Zonqor controversy, when ODZ land was sold to Jordanian developers to build a university campus, both major parties jumped on the bandwagon to protect ODZ land. 

However it remains to be seen to what extent the two parties want to stop construction in ODZ. 

In its proposals so far, Labour is not excluding private projects on ODZ land. The Strategic Plan for the Environment and Development (SPED) itself includes a number of loopholes for developments like schools, private hospitals, petrol stations, homes for the elderly and any development which is not feasible within the development zone.

On the other hand, the PN has promised that any project irrespective of whether public or private will need parliamentary approval: a two-thirds majority in two consecutive votes and a final simple majority vote.

A clear commitment not to construct the few open spaces left in this country, and not enshrining environmental protection in the Constitution, will be the real test for the new government.