The right to a healthy environment | Mark M. Scerri

Mark M. Scerri is a lecturer in environmental sciences

I don’t hold a high opinion of the environmental credentials of either major political party, and in my view they are both jointly responsible for the current mess we are in. The mess is a direct consequence of the leverage certain lobbies such as developers have over both of parties.

I, for one will never forgive the PN for creating the right conditions for the current seige on the environment by the agents of greed through the extension of the development zones in 2006.

Furthermore, I must declare that I have no intention of voting for the PN, Alex Borg and Darren Carabott in the forthcoming general election for a number of reasons that are beyond the scope of this article. However, as a lecturer in environmental sciences and as an environmentalist, I can not but support the motion presented by Carabott to amend the Constitution and introduce the right to a “clean, healthy and sustainable environment”. Not supporting it would have been counter to my principles.

In reality, the motion is extremely simple; so basic, that one would think it hard to oppose! Who, in their right mind, wouldn’t want such a right enshrined? The only logical reason to oppose it is if one has a vested interest in creating an unhealthy, dirty environment. It is equally illogical to oppose the right to the enjoyment of the environment. And yet, the Labour Party and the environment minister came out in full force against the bill, claiming it had “serious shortcomings”.

This is the same government that did not hesitate to try to introduce by stealth amendments to the Development and Planning Act and to the Environmental and Planning Review Tribunal Act that could have serious repercussions on the environment and on third party rights. But when it came to this simple amendment, they were suddenly “concerned”. Another ridiculous argument raised by Dalli and Justice Minister Jonathan Attard was that Article 9(2) of the Constitution already mentions environmental protection in the declaration of principles of the Republic of Malta. What they failed to say (perhaps deliberately) was that this part of the Constitution is non-enforcable. In other words, according to these two ministers, environmental protection should remain nothing more than a declaration—the public should have no right to demand it be enforced.

Existing obligations

The Opposition’s amendment was not introducing anything Malta is not already obliged to do. The UN International Covenant on Economic, Social and Cultural Rights, which was signed by Malta in 1968 and ratified in 1990 includes an obbligation on Malta to recognise every person’s right to the highest attainable standard of physical and mental health through inter alia the improvement of all aspects of environmental hygene (Articles 12(1) and 12(2b) of the Covenant). Can this be achieved without a clean and health environment? The answer is clearly no. Numerous WHO publications unequivocally highlight the link between air, water, soil, and noise pollution and ill health, both physical and mental.

It is absurd to oppose the explicit mention of the right to a clean and healthy environment in the Constitution, while at the same time claiming to uphold the right to the highest standard of health. It is the equivalent of someone being deeply concerned about lung cancer while at the same time chain smoking cigarettes. One would have expected Malta’s ratification of the covenant would have prompted the inclusion of the right to a clean and healthy environment in the Constitution.

One would also have expected some reasoning behind the PL’s and Dalli’s opposition but instead we got fear mongering. We were told that this change will endanger our habits, traditions and certain economic activities. But no details were provided as to how this could happen.

Compromising public health for private habits

If Dalli is correct, then she is effectively saying that public health, a public good, can be compromised for the sake of private habits, traditions, and economic activities.

Take one practical example. In Malta, the summer months are characterised by the festa season, which includes the letting of fireworks. Fireworks include perchlorate salts as an oxidiser, which has been shown, by research carried out by the Chemistry Department at the University of Malta, to contaminate soils and water resources. My own research has shown that fireworks contribute to the atmospheric load of PM 2.5, very fine dust, that penetrates deep into the alveoli of the human lungs. Other colleagues have determined the presence of fine dust from fireworks in indoor dust too. It is known that the perchlorate ion interferes with hormone production in the thyroid therefore potentially exposing a large proportion of the population to health effects. Should a large part of the population be exposed to thyroid malfunction—to put it mildly—just to safeguard an activity deemed traditional? Does the label “traditional” absolve us of responsibility for public health?

The same applies to economic activities. Socialising costs (ill health is in itself a cost) for the sake of private profits, is an anthema for me. I would have thought that Dalli, who is supposedly a socialist, holds the same opinion on this.

Some might argue that health could be protected through specific legislation. But here, too, the devil is in the detail. I spent 16 years of my life working in environmental regulation and I know too well that the vast majority of the laws in Malta’s environmental statute are derived from EU Environmental Law. EU Environmental Law targets issues that are important at the EU level.  It is understood that issues of national importance are targetted by national legislation.  Well, you can count the environmental laws stemming from national initiatives on your finger tips. A case in point is the much-touted noise law, promised by Mario de Marco in 2011, taken up by José Herrera in 2016 and has since done a Godot. Meanwhile, residents all over the Island complain of increase noise. Visit Merchant Street or any restaurant-heavy stree in Valletta and experience listening to all the official top 100 singles.... contempraneously.

While the European Human Rights Charter does not explicitly mention the right to a healthy environment, the ECHR has issued approximately 300 rulings on issues related to environmental protection through the links between this and rights such as the right to life, the right to respect for family life and the right to freedom of expression.

So, will the government now propose to amend the charter because it too could potentially harm economic activities, traditions or customs? I wouldn’t put it past them, given that barely six months ago the prime minister was pandering to some of the right-wing governments in Europe by suggesting amendments to certain human rights conventions.

One might say that Article 32(c) of the Constitution of Malta does include the right to family life, and therefore using the argument above, the right to a clean environment would be redundant. However, in this case one has to ask the question whether the Maltese justices are willing to be bold enough to interpret this right in the same way as the ECHR does, in all the cases that deal with environmental issues.  Enshrining the right to a clean environment in the Constitution should reduce any reticence to rule in favour of the environment.

This issue should have enjoyed bipartisan support in parliament. By enshrining the right to a healthy environment, Malta would not be re-inventing the wheel since a number of countries have already done so, including  Spain, Portugal and Greece. By the way, they have still stadia in Spain, Portugal and Greece (MFA and MPL please note!). In July 2022, the United Nations General Assembly through resolution A/RES/76/300 recognised the right to a clean, healthy and sustainable environment as a human right. Will the PL now do like that odd ball of Donald J Trump and declare that the UN is ineffective and question its raison d’être. Or is the PL more interested in picking up petty squabbles with the PN? At this point, I can’t help but note that denying citizens a right to redress even for environmental issues is becoming too much of a habit.