Right in the nick of time

A few years ago I had stated in an article that reforms to our rent laws were long overdue and that

if the government would fail to intervene in this regard it would be forced to do so by the European institutions. Amazingly, it seems our Parliament just managed to carry out the necessary reform in the nick of time, though, as I will argue later, it seems that we have to push these reforms even further.

It must be pointed out that the relative amendments to our rent legislation were implemented just before Parliament’s summer recess. In a landmark judgment delivered very recently in the case Amato Gauci vs Malta of September 15, the European Court ruled that the applicant’s property rights were infringed as a result of the prevailing rent laws, which forced him to keep a tenant despite the fact that the contract had expired and he was being paid a puny amount for rent.

The repercussions of this judicial pronouncement, as we shall see, are far reaching for Malta. Traditionally, Maltese courts have proved far too reluctant in upholding constitutional claims that could have a big social impact. Even now the courts still take into account the notion of what I’d refer to as the social purpose of a law, which, I argue, no longer has any juridical bearing. Many court cases have been rejected on the premise that upholding them could affect adversely a wide spectrum of the populace.

This attitude towards the law, however, is one that is encompassed by those regimes and governments that do not fully embrace the liberal principles of the rule of law and those emanating from a modern democracy based on human rights. In the light of this, therefore, it is perhaps correct to affirm that our judiciary, in respect to the upholding of fundamental human rights, have proved to be far too timid and overcautious. In this respect, we have witnessed the European Court overrule over and over again our Constitutional Court’s judgments and this is far from edifying.

Till the amendments mentioned earlier were introduced, our rent laws did not hold a good enough balance between the inherent rights of the landlords and the lessees. The undertone of our laws was to circumvent as much as possible problems in social housing and, therefore, have traditionally afforded great protection to the lessees. This could perhaps be understandable and even acceptable from a historical perspective, especially if one takes note also of the housing problem that was extenuated even further by the ravishes of World War II.

Times, however, change and society has to change with them and adapt. Thus, it was right and fitting for Parliament to debate and pass by consensus the relative legislation.

The question to be asked now that the European Court has delivered the aforementioned judgment is whether we have gone far enough. I dare say that perhaps we haven’t. We parliamentarians from both sides of the House have had so much internal discussion within our respective parties to strike a delicate balance between the various interests and to try and avoid a backlash. Our efforts, however, may not have been enough.

Strasbourg has made it clear that, once the duration of a lease agreement is complete, the owner is definitely entitled to fair rent. In this respect, Parliament has decided to increase all existing rent, which is afforded legal protection, to a minimum of a €185 per annum. Whether the European Court would consider this reasonable is the million dollar question to ask. I personally harbour much doubts.

Furthermore and worst still, all lessees imposed by the state via requisition orders have not been as yet affected by the radical rent reforms that have just been implemented. Here again, it seems the government will have to rethink its position or else it could face contrary judgments from Strasbourg. There definitely could be pleasures yet to come in this respect.

In the light of all this it therefore appears amply clear to my mind that this time round it will surely be the turn of the state to carry the brunt of having to subsidise rents and not to impose any longer this burden on private citizens. In economic terms the repercussions of all this can be overwhelming. The Amato Gauci case has therefore definitely rocked the boat here in Malta and our government would be wise to start contemplating remedial action.

Dr Herrera is a Labour member of Parliament.