Constitutional Court confirms ruling in favour of Allied Newspapers

The Constitutional Court yesterday confirmed a judgment of the Civil Court which had ruled that the expropriation of Canberra House, a building in St Paul Street, Valletta owned by Allied Newspapers Limited and originally wanted by the government for the building of a new parliament, had been in violation of the right to enjoyment of property and to a fair hearing.

The first court had ruled that after 1990, when the House of Representatives had voted Lm400,000 towards the new parliament project, no more money had been allocated for the project. Neither had the government applied for a building permit and recent declarations in the House confirmed that the government had lost interest in the matter.

The court had ruled that the building of a new parliament seemed to have been just an idea for the future and no evidence had been produced to prove a concrete and actual interest.

This meant there was no fair balance between the interests of the community in general and that of the property owner since the building was expropriated in 1989 but nothing had been done to develop the project.

Allied Newspapers Limited's suit was filed by constitutional application before the Civil Court against the Attorney General and the Commissioner of Lands in November 1999.

The company explained it owned Canberra House which had been expropriated by the government on March 21, 1989, on the grounds that it was required for a public purpose.

The acquisition of the property was to take place by absolute purchase.

But the government had made no offer of compensation to Allied Newspapers Limited and the company was never served with a notice to treat.

The property was in an advanced state of deterioration and constituted a danger, the company claimed, and it had been forced to carry out the necessary repairs so as to prevent the total collapse of the building.

To date, the government had not made use of Canberra House and the company still had factual possession.

It called on the court to declare that its fundamental human right to enjoyment of property and its right to a fair hearing as protected by the Constitution and the European Convention on Human Rights had been violated.

But the Attorney General and the Commissioner of Lands submitted that the commissioner had acted within the limits of the powers granted to him at law.

They also argued that the company's action could not be upheld since the law governing the acquisition of land for a public purpose was enacted prior to 1962.

The Constitution provided that no action taken in terms of such a law could be considered as being in violation of fundamental human rights.

They added that the commissioner had every interest in acquiring the property known as Canberra House by title of absolute purchase.

Furthermore, they submitted that the acquisition of property was a complicated process involving many government departments. Consequently, much time could elapse from the publication of the presidential declaration ordering the expropriation and the issue of the notice to treat.

The authorities' submission on the Constitution was upheld by the first court.

The court noted that, in terms of a Civil Court judgment in the names Pawlu Cachia vs Attorney General, all that was required in terms of the law for the acquisition of property for a public purpose was for the presidential declaration to enunciate that the land was required for a public purpose. Therefore Allied Newspapers Limited's claims, insofar as they were based upon the right to enjoyment of property as protected by the Constitution, could not be upheld.

But when examining the provision of the European Convention on Human Rights, the court noted that this provided for the protection of peaceful enjoyment of property.

This right, according to the convention and to case-law, was subject to certain conditions and the government could control the use of property in accordance with the general interest.

The European Court of Human Rights had also ruled that a fair balance had to be struck between the demands of the general interest of the community and the individual's fundamental rights.

The court declared that there was no doubt that the right to property was not absolute and that the public interest could limit the enjoyment of such right.

In this case, the expropriation order was published in the Government Gazette in March 1988.

Allied Newspapers Limited was never deprived of possession of Canberra House for the company retained the keys to the premises and even had to carry out some necessary repairs. However, the company could not develop the property and on its part the government refused to release it. This was tantamount to a factual interference in the peaceful enjoyment of the property by the company.

Both the Attorney General and the Commissioner of Lands submitted that the expropriation order had been issued in respect of Canberra House so that the property could be utilised in the construction of a new parliament.

The court declared that no evidence was produced to prove a concrete and actual interest but the project boiled down to an idea of what might take place in the future.

The court concluded that there was no fair balance between the interests of the community in general and that of the property owner, namely the company.

When examining the company's claim that its right to a fair hearing had been violated, the court noted that the company had been deprived of access to the Land Arbitration Board for 10 years, for no notice to treat had been issued from the expropriation until the company filed its constitutional case.

Thus, the company had no right of access to the board to contest the compensation as none had been offered for 10 years.

The authorities appealed to the Constitutional Court composed of Chief Justice Vincent Degaetano, Mr Justice Joseph D. Camilleri and Mr Justice Joseph A. Filletti.

The Constitutional Court reiterated the principle that expropriation was an exception to the right of free enjoyment of property and that it was therefore up to the state to exercise the right to expropriate only so far as was strictly necessary.

It was only after Allied Newspapers filed its constitutional application that the Commissioner of Lands had appointed an architect to value the property and only then was an offer of payment made to the company.

It was not right for an owner to be subjected to over 10 years of interference in its enjoyment of its own property.

The court declared that it saw no reason to overturn the decision of the First Hall of the Civil Court, save insofar as such judgment had declared the presidential declaration of expropriation to be null and void.

Instead, the Constitutional Court confirmed the first judgment and ruled that the presidential declaration was to be declared as having no effect on the property known as Canberra House and this with effect from the date of the first judgment.