PN proposes environment as a human right: 'Keep governments on their toes’

Darren Carabott insists the PN’s proposal to make the environment a human right is to put present and future governments on their toes. 

He says the constitutional amendment will make governments think twice whenever proposing laws that impact the quality of life. 

Darren Carabott is one of the proponents from the Opposition to put forward a private member’s Bill to include the right to a healthy environment in the Constitution. He unveiled the proposal earlier this month with MPs Janice Chetcuti and Stanley Zammit. 

But is this pie in the sky politics or a sensible move? 

Carabott believes this is the next level of protection the environment needs. 

“Governments will have to ask; can this law or plan be challenged in the constitutional court for violating the right to live in a healthy environment?”  

To illustrate this point Carabott conjures two concrete scenarios where the proposed constitutional amendment can make a real difference for the common citizen. 

In the first example, residents are repeatedly exposed to excessive levels of air pollution beyond thresholds established by EU law, but the authorities fail to act.  

In this case, residents will be able to take the authorities to court for breaching their fundamental right to live in a clean and healthy environment. 

“Inaction by public authorities will make them liable to court action. This should encourage public authorities to strengthen their enforcement as otherwise they could be sued,” Carabott says. 

In the second example residents feel that an existing regulation, like for example last year’s legal notice allowing establishments in Valletta to play music till 1am is in breach of their fundamental rights. In this case the residents will be able to ask the court to determine whether these regulations are in breach of their human rights. 

Carabott explains that in both scenarios the approval of the constitutional amendment will make a difference. 

In the first case public authorities like the Environmental and Resources Authority will be held accountable in cases where they fail to act to protect citizens. In the second scenario government will have to ensure that all laws and rules in the country are not in breach of the human right to live in a healthy environment. 

Prevention better than cure 

He also insists that one of the main aims of the proposed constitutional Bill is “preventive.” 

“If the constitutional amendment is approved governments will be very careful to ensure that any rules they enact are not in breach of this human right,” he argues. 

Moreover, the definition given to the word environment in the proposed constitutional amendment is a broad one and even refers to “social conditions, aesthetic coherence and cultural attributes” apart from “air, water, land, the eco system and natural and physical resources.” 

The reference to social conditions ensures that  citizens can invoke their constitutional right in cases where their quality of life is being eroded by for example exposure to noise pollution in late hours. 

In fact, the most radical aspect of the constitutional reform proposed by the PN is that “all existing laws and plans will come under scrutiny.”   

He points out that as a country we already accept the principle that all our laws should be in conformity with human rights and the PN’s Bill is simply the logical conclusion of recognising environmental rights as human rights. 

“The whole point of the Bill is to ensure that the country does not have a single policy or regulation which is in breach of human rights, in this case human rights related to the environment.” 

Soundness of idea questioned 

But not everyone agrees with the PN’s proposal. Writing in MaltaToday last Sunday, former Nationalist minister Michael Falzon questioned the soundness of the idea. 

Falzon said where breaches of the environmental laws are concerned the responsibility to act is the Environment and Resources Authority’s. It rarely chases breaches made by government entities, he added, and making these breaches unconstitutional would not change the current scenario. 

“If the administration does not respect the environment, no number of laws and constitutional provisions would change its attitude,” he wrote. 

Falzon said the situation is hazier when it comes to environmental breaches by individuals. "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?” 

These are pertinent questions, but Carabott is unfazed, insisting the constitutional right can only be invoked in cases presented against public authorities or the government. 

All power to the law courts? 

“One will not be able to challenge a planning permit awarded to an individual, but one will be able to challenge a planning policy or the lack of enforcement by an authority.” 

Moreover, the wording of the Bill ensures that citizens will not have to prove that they have a direct interest in taking the government to court over the violation of their rights.  This will ensure that NGOs can take government to court over an issue which does not directly impact on their members, but which is in the public interest. 

The law also gives the constitutional court the power to provide a remedy and not just impose fines. Moreover, laws and regulations which are in breach of these rights can be revoked.  

One risk of the proposed amendment would be that of giving too much power and responsibility to the courts in environmental policy, but Carabott puts the onus on the State, irrespective of which party governs the country.  “If our governments enact laws which respect this human right and if our authorities act to protect these rights, nobody will have to go to court. What we are doing is introducing a new level of scrutiny”.