Beyond the auditor's recommendations

I read with interest the recommendations made by the Auditor General regarding the issue of expropriation of private property by the government.

These recommendations oddly enough were intended to speed up proceedings in order for the government to cut down on expenditure. In this article, however, I propose to go beyond the scope of the auditor's report and analyse the issue from a different perspective.

There has been an ongoing debate with regard to this matter for quite some time now but, unfortunately, the problem has persistently been shelved. No doubt, our Constitution grants the right to the government to expropriate private property so long as this is for a public purpose.

As a point of interest until very recently our courts used to refrain from scrutinising what is juridically acceptable as a public purpose. The mere declaration by the executive that the property is being taken for a public purpose used to suffice and the courts would stop here. Curiously, today the position still isn't that clear either. In some particular instances our courts have gone further ascertaining their jurisdiction in reviewing whether in fact a true public purpose would exist. On the other hand, there were instances were our courts have sadly reverted to the former position and have refrained from exercising judicial review.

In the light of the above therefore it is high time that Parliament should intervene and legislate accordingly making it clear that such administrative decisions should indeed fall under judicial scrutiny and this in order to circumvent abuse.

Furthermore, according to law in instances of expropriation, due compensation must obviously be paid. Here another problem arises. It must be emphasised that the actual compensation to be paid is rarely if ever just and equitable. Our Constitution unfortunately leaves too great a latitude for the government to work out arbitrarily its own formula of how compensation is to be liquidated. This being the case, more often than not the amount offered will not reflect the actual and commercial value of the property. This is unjust. It is high time therefore for this anomaly to be rectified.

What is perhaps most frustrating of all, however, are the unwarranted delays being experienced. When an offer of compensation is made by the state, the individual concerned can opt to contest the way the amount would have been calculated. Here the matter is referred to the Land Arbitration Board. The proceedings before this quasi-judicial tribunal, however, have led to severe criticism primarily due to the fact that for years on end this forum was hardly functioning at all. Here cases inexplicably dragged on for decades. According to law, previously this tribunal had to be presided over by a sitting member of the bench. It seems that over the years members of the judiciary were extremely reluctant to preside over this particular tribunal and, thus, there was a time when cases before this tribunal were left in abeyance for years on end.

Precisely for this reason and others a short while ago a law was enacted thereby making the way for such quasi-judicial tribunals to be presided over by either retired members of the bench or senior member of the legal profession. This notwithstanding however and strangely enough these tribunals are still presided over by active members of the judiciary. Surely therefore it is high time that all this is changed.

It is the function of the Auditor General to pinpoint inefficiencies and ways of cutting down on government expenditure. On the other hand, perhaps it won't be long before a parallel report on the issue will be presented to Parliament and this by another high parliamentary officer, the Ombudsman, this time aiming at speeding up justice to citizens whose property would have been expropriated by the government.

Dr Herrera is the Labour Party's spokesman on Central Bank, financial and maritime services, Malta Stock Exchange and statistics.