The right to the environment

The Nationalist Party has launched a public consultation ahead of proposing a Bill in the House of Representatives to introduce the ‘right to the environment’ as an enforceable human right in the Constitution.

This idea seems to supersede the excellent PN document ‘A better quality life for you’ which was launched in January 2017. The document was considered by many as giving a clear strategy for each aspect of the environment. It did not propose to stop construction but to channel it into where construction, rehabilitation and renewal can be advantageous both to the building industry itself and to the environment, showing that the two can work in tandem.

In a reaction to the PN’s latest proposal, ADPD pointed out that the protection of the environment and protection from pollution are already listed as principles in the Constitution of Malta and that it has repeatedly called for the ‘unenforceable’ principles in Chapter II of the Constitution, to be enforceable by the courts. The newly appointed party chairperson, Sandra Gauci, said that constitutional principles which remain unenforceable are to all intents and purposes just a dead letter.

Actually Section 8 of the Constitution refers the unenforceable obligation of the state ‘to safeguard the landscape and the historical and artsitc patrimony of the Nation.’

I wonder how the inclusion of the ‘right to the environment’ can be enforced. According to PN spokesman Darren Carabott the proposal means that we will enter into force the strongest possible law with which to protect the environment by guaranteeing the fundamental human right for a clean and sustainable environment. He added that this is not a right invented by the PN as it exists and is in force in over 150 countries. Personally, I wonder what is written about the environment in the constitution of these 150 countries. How is the environment safeguarded in all of these 150 countries?

In the end, if I understand correctly, the state will compensate those who are deemed to have had their right to the environment breached.

Let’s take a practical example which was also mentioned by Janice Chetcuti MP when the PN launched its proposal. The Gozo Ministry's illegal clean-up of Hondoq ir-Rummien beach using heavy-duty machinery, on the eve of the Gozo Minister addressing schoolchildren on the beach on the occassion of World Turtle Day. The way this beach was cleaned is illegal, but the Environment and Resources Authority (ERA) has taken no action against this blatant breach of the law.

ERA is the national agency responsible for environmental regulation in Malta and is responsible for ensuring that the environment is protected and that natural resources are used sustainably.

If ERA were to take action on this breach of the law, the Gozo Works Department or the Ministry for Gozo (whoever is the guilty party) would be fined and money will pass from one state entity to another. So much for enforcement where government entities are involved!

I cannot understand how the inclusion of the ‘right to the environment’ as an enforceable principle of the Constitution would change this scenario.

Where breaches of the environmental laws are concerned today, ERA rarely chases breaches made by government entities. Making these breaches unconstitutional would not change the current scenario.

If the administration does not respect the environment no amount of laws and constitutional provisions would change its attitude.

As to acts that harm the environment made by private individuals, the issues become even hazier.

Works without a permit are illegal anyway. Would a permit for development issued by the Planning Authority despite objections from ERA be in breach of the constutional rights of an objector, when such objections are based on opinions rather than on facts?

The case of the Tal-Hondoq breach is clear because it is based on fact - the use of heavy machinery in beaches is illegal. Most of the advice given by ERA on proposed development permits is also based on professional assessment. Where there is a breach of the law, the case is simple.

But, otherwise, will the professional opinion of someone at ERA become a ‘right’ protected by the Constitution? And why restrict this to professionals working with ERA? There are professionals supporting environmental NGOs. Will the opinion of an NGO about harm to the environment in some development proposal also become a ‘right’ protected by the Constitution?

Will the opinion of a professional in the pay of the owner of a neighbouring property become a confirmation that the constitutional provisions on the environment will be breached if development is allowed on one’s property?

Will the ‘right to the environment’ of citizen A be considered more important than ‘the right to enjoy one’s property’ of citizen B?

The problem is that there are many actions that are subjectively considered to be harmful to the environment while they are not illegal.

Should the Constitution protect subjective opinions, rather than the right for citizens to have a subjective opinion?

Can one breach the Constitution for an act because of a subjective opinion about the effects of one’s actions?

I do not doubt the PN’s good intentions behind its proposal but one must be careful to avoid launching a process that could generate even many more complicated problems. The PN should be careful not to propose the opening of the proverbial Pandora’s Box.

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EU summit in Moldova

Earlier this week EU leaders met in Moldova in a show of support for both Moldova and neighbouring Ukraine which is preparing to launch a counter-offensive against Russian forces occupying Ukraine.

“If you sit in Moscow and see 47 countries in your immediate or close neighbourhood meeting together, that’s an important message,” an EU official told reporters ahead of the summit, which takes place 40km southeast of the Moldovian capital, Chisinau.

A country of 2.5 million citizens lodged between Ukraine and NATO member Romania, Moldova has taken in more Ukranian refugees per capita than any other country.

Meanwhile, NATO allies are wrestling with how to deepen ties with Ukraine, short of immediately making it a member as long as Russia presses its invasion.

While the eastern flank is pushing for a more concrete membership roadmap, the US and other allies instead stress the need for practical support.

Countries are cautious given that NATO’s Article 5 security guarantees would involve them in the war.