Joseph Falzon
Exposed to public scrutiny
I have been the subject of a number of personal allegations concerning the decision taken by the court to acquit two accused persons in the Mistra case. Permit me to make some comments.
1. At no time did I criticise the decision of the magistrate (as was reported erroneously in The Times on November 2). The magistrate was deciding on the charge that two former members of the Development Control Commission were in some way criminally responsible for what happened. She was not considering the planning process and the way it was carried out. She simply made a statement of fact: it had become normal practice, according to the testimony of architect Paul Borg (himself a former DCC chairman), for the applicants to have meetings with DCC board members in private.
When I read the testimony given by Mr Borg, I immediately wrote to the Mepa chairman where I clearly told him that during my period as DCC chairman I never had any private meetings with applicants or objectors except during the formal DCC meetings. I also pointed out that this practice is illegal and should be stopped forthwith. I wanted to make my letter to the chairman public but the chairman advised against it. For the sake of good relations, I decided to follow his advice.
Incidentally, the letter was written following legal advice. The advice that I was given was that my interpretation of the law was correct.
2. Robert Musumeci said that Mepa case officers should have meetings with applicants to discuss their planning applicants. This is correct. In fact, the Planning Directorate has a duty to hold pre- and post-submission meetings when requested with developers, objectors, etc. My only criticism in this respect was that, in respect of most of these meetings, minutes or other records are not kept. It is the decision-making bodies (the Mepa board and DCC) that can discuss planning applications only in meetings open to the public.
3. There were a number of comments by Andrew Calleja, former Mepa chairman, who tried to shame me to admit that, during my period as deputy chairman of Mepa, the Mepa board used to meet behind closed doors to have a preliminary discussion on pending applications, which were to be decided by the Mepa board itself. This is completely true. I had on a number of occasions pointed this out to Mr Calleja personally.
At the time I was deputy chairman, which, as in the case of most deputies, was generally a superfluous post except for ensuring a quorum, I relied on the discretion of the chairman. It was simply never pointed out to me by anybody that this practice was completely illegal. When I became audit officer, I decided, for obvious reasons, to study in some detail the Development Planning Act and, after discussing the relevant section with a colleague, I had come to the conclusion that the practice was illegal. It was illegal when I was deputy chairman and it still is! The difference is that, now, it has been pointed out to Mepa on several occasions but the practice still continues.
4. Mr Calleja, when Mepa chairman, kept insisting that I take legal advice on a number of matters. When it was appropriate to do so, I sought legal advice and, in general, I was proven right.
On several occasions, Mr Calleja kept insisting that when I received complaints from the public, I should not send a copy of the conclusions of the investigation to the complainants. He did not seem to understand that the planning process is exposed to public scrutiny. As he kept insisting, I sought legal advice from the Ombudsman himself. In a detailed report, the Ombudsman proved me right and agreed fully with my practice. (Incidentally, when I took office as Mepa audit officer I had prepared a system of procedure for the office with the advice and concurrence of the Ombudsman.)
5. Mr Calleja made several derogatory remarks about my work as audit officer. While, in general, I leave his remarks to the judgment of readers, I think it opportune to remind Mr Calleja of the comments he had made when I indicated to him my intention of following closely the legal provisions of the Development Planning Act in section 17C (7), that I take instructions from no person: "X'daħħalna hawn ġew!" (What have we got here!). Maybe Mr Calleja is not used to carrying out his work without taking instructions, even as chairman of an autonomous institution such as the Mepa!
6. The fact that there are no registered objectors for an application is completely irrelevant. The planning process aims at creating a better quality of life for the whole community, which, therefore, has the right to participate fully in the whole process. By holding meetings with developers where the public is excluded this right is being compromised.
7. As to the remarks by Dr Pullicino Orlando, I never investigated his actions. My remit is limited to investigating the operations of Mepa. In the Mistra case I had a request from the Prime Minister and from Dr Pullicino Orlando himself to investigate the matter. I did so to the best of my abilities. If my conclusions did not please everybody, it is no fault of mine. I have nothing to be ashamed of.
8. I have also been taken to task on with regard to the Mistra application approved by the DCC when I was its chairman. I have already commented on this fact. Basically, this was an existing building located next to the bay and which the owner wanted to use as a restaurant. The DCC board felt that the use was appropriate and the environmental impact would be minimal. We were proved right: most people hardly know of the development as approved. Incidentally, the present policies did not apply at the time.
9 One final remark on the job description of the complaints officer, Mr Vassallo. Mr Musumeci reproduced a full copy of this job description (I never knew that this information is so easily accessible!). I make it clear that I believe that the duties of the liaison officer, insofar as they involve participating in or organising meetings between the DCC members and applicants, is in conflict with the Development Planning Act. If his job is simply to facilitate negotiation processes between Mepa and applicants (that is, by organising pre- and post-submission meetings with the directorate), then it is another matter altogether. Any contentious issues should be ironed out during meetings open to the public if DCC members are involved. In the Mistra case, contentious issues were very well ironed out, possibly with a steam roller; even the provisions of the law were conveniently forgotten and flattened out.
Mr Falzon is auditor officer of the Malta Environment and Planning Authority.
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J. Schembri
Nov 6th 2009, 19:59
@ C Cutajar: I don't want sacrificial lambs.So for their sake I stop here , and yes they are exemplary persons. In Maltese we say " iddahlu bejn il-basla u qoxritha".
C.Cutajar
Nov 6th 2009, 18:54
@Schembri
Those poor people were wrongly accused and went through hell. The least that you can do is to drop your arguments and let them enjoy their moment of peace because justice has been made. They are clean and honourable persons who carried out their job in a conciensious manner and have been declared not guilty by our law court.
j ebejer
Nov 6th 2009, 18:52
In his article, the AO argues that the Court “simply made a statement of fact: it had become normal practice,”
The Court describes such meetings as “perfectly legitimate” (page 23 of the Court’s decision) I think this is more than just a statement of fact. If there was any doubt, the Court would have entered into the merits of whether such meetings are in accordance to law as this could have had a bearing on the final outcome of the case.
Note that the prosecution contended that the accused were not entirely sure that such meetings were legal so much so that “the Prosecution started to refer to these meetings as clandestine.” This was one of the two main points on the basis of which the prosecution decided to proceed with the case. (pg 14/15 of the Court decision). For the Prosecution the matter seemed to be very relevant. This notwithstanding, the Court chose to describe such meetings as legitimate.
Alfred Camilleri
Nov 6th 2009, 18:38
While reading this article I was intrigued by Mr Falzon's comment , No 3 and intended to reply.
However Mr A. Calleja's retort thereon was spot on. Exactly my (and many others', I presume) thoughts .Ignorance of the law is no excuse. Your duty, dear Mr Falzon, was to examine the legal implications before you exercised the practice. In your position, you weren't expected to have things being pointed out to you. It's not as if you were a schoolboy waiting for instuctions from your teacher. After all you yourself boasted that 'you take instructions from no person'. Mr Falzon, do you think that your place at MEPA is still tenable?
laurence schembri
Nov 6th 2009, 18:00
@ John Schembri I totally agree with you.
Joseph Calleja
Nov 6th 2009, 17:40
This sounds like the pharmaceutical companies warnings. This medicine will cure the pain in your arm but it might have side effects. You might lose one of your fingers or effect the way you walk. Check with your doctor if you experience any problems. Sounds familiar? Should you be afraid of the medicine or the side effects?
Andrew Calleja
Nov 6th 2009, 16:33
The term 'illegal' has only one definition and only a court of law can rule on such matters. The court has clearly stated that it does not find the holding of such meetings irregular and goes further by stating that they were done in a legitimate way. If you or anyone else thinks differently then you have one way forward-appeal the Magistrate's ruling or desist from your injurious comments towards persons who were not found guilty of any wrongdoing.
J. Schembri
Nov 6th 2009, 16:21
@ Joe Vella :the arguments you brought are highly inspiring .
"Mr. Falzon you are wrong. No other option for you, but to submit your resignation." put in other words : " get out of the way so we can do whatever we like".
j ebejer
Nov 6th 2009, 16:17
@John Schembri
The Auditor interpreted the law wrongly on meetings between DCC chairperson’s and the applicant. There is nothing in what the Auditor said in this article which in any way convinces me otherwise. One could consider changing one’s view if there were substantive legal arguments from a legal person but the AO does not even attempt to provide that.
It is pointless talking about the spirit of the law to justify what is a blatantly wrong interpretation of the law. Any public institution , MEPA included, is bound to act within the parameters of the law based on a CORRECT interpretation of the law (and NOT on what one may deem to be the spirit of the law).
If the AO thinks that there is something fundamentally wrong with meetings between DCC Chairperson’s and the applicants, he should have recommended to government to change the law accordingly.
J. Schembri
Nov 6th 2009, 15:32
If a developer can meet a member of a DCC board in private there would be no holding him from meeting all the other board members at one go in private. It is worrying when one sees people in positions of power trying hard to defend such unrecorded secret meetings, by resorting to technical excuses. There are no written words specifically on one to one meetings with board members they say. Do we have to write down also what should not be consumed during these board meetings?
Some years ago we had a senior judge who 'met' with the representative of an accused behind the back of his colleagues and the judge was sent to prison.
Lately we had a drug pusher who was released by our courts because the mind altering drugs he intentionally chose to smuggle were erroneously not listed as illegal drugs.
He quoted the written words but the sentence was against the spirit of the law.
Such interpretations of our laws and regulations erode the people's trust in our institutions.
It's time for this government to clean up these Aegean stables.
Joe Vella
Nov 6th 2009, 14:50
Mr. Falzon you are wrong. No other option for you, but to submit your resignation.
Andrew Calleja
Nov 6th 2009, 12:39
Point(9) The foolowing section from the Act regulates the procedure of the DCC:
3. The Development Control Commission
13. (5) The meetings of the Commission shall be open to the public, subject to the
power of the Commission to exclude any member of the public if it deems it necessary
so to do for the maintenance of order. .……………..At the request of any member of the Commission, the deliberations of the Commission shall be held in private but every vote, shall be conducted in public. No secret vote shall be allowed....................
(7) Subject to the foregoing provisions, and to any rules that may be prescribed
by the Authority, the Commission may regulate its own procedures.
There is nothing in the law that suggests that meetings involving individual members of the DCC are illegal. The law clearly dictates that the vote on applications during a FORMAL SITTING OF THE DCC has to be conducted in public and even allows the DCC to deliberate in private at the exclusion of all interested parties.
Meetings such as the ones called by the Liaison officer can never be interpreted as being official DCC meetings and are also fully inline with his job description.
Andrew Calleja
Nov 6th 2009, 12:31
What YOU believe and YOUR interpretation of the legal text is not what the law actually dictates. The text does not state what you are trying to affirm.
You are in constant conflict with legal advisors because of this problem. Instead of creating controversy and in the process misguiding the public, you should adopt a more proactive approach to fulfill your convictions.
If you want to do things the right way you should recommend to Government that the matter be taken up while it is considering the reform of MEPA. Government has already stated that it will have to amend the legal text to facilitate the reform changes under consideration. I am sure that if your suggestion is deemed appropriate and desirable there will be no problem in including it as part of the reform.
Until such time, it will be diabolical on your part to persist in error on a matter of law.
j ebejer
Nov 6th 2009, 12:19
The MEPA Auditor is of the opinion that meetings between DCC Chairpersons and applicants are illegal. Presumably, he arrives to this conclusion on the basis of Article 15 (5) of the DPA Act which states “The sitting of the Board shall be open to the public ….”
There are at least two pre requisites for a “sitting of the Board” to take place.
The function of the DCC Board is to take a decision on any development application. (Articles 13(2) and article 36 (10) of the DPA Act.) Hence, notwithstanding the presence of Board members, a meeting is not a DCC Board meeting if there is no specific intent to take decisions on development applications. Moreover, for a DCC meeting to be held there needs to be at least four out of seven members present (article 13 (4)).
In a meeting with an applicant, there are at most two DCC board members. This cannot remotely be considered to be a “sitting of the Board” and therefore the legal provision relating to the presence of the public does not apply. It becomes a DCC board meeting if decisions are taken and if there are at least four members present.
Andrew Calleja
Nov 6th 2009, 11:52
continued ....
Point(5) Can you please indicate when and in what circumstances I allegedly uttered those words?! Are you intimating that I was against following the legal provisions of the Act? Can you produce any proof that I knowingly and at any time during my tenure broke the law!? I can vow that I always sought legal advice when carrying out my duties. Please come forward with the details or withdraw your insinuations. Comments like these embody your manner and attitude.
Point(6) You were the only member on the Board who continually insisted that third parties should not be given the right to speak at Board meetings. During your tenure as DCC chairman you rigorously adopted this practice. The Act actually states that persons attending the meeting will be allowed to speak at the discretion of the chairman but you still kept advising the PA Board to altogether remove this right from the legal text.
Andrew Calleja
Nov 6th 2009, 11:50
I will refer to the points in your article:
Point(3) If the practice is morally and fundamentally bad it should have been amply clear to you from the very beginning. Ignorance is no excuse. If your conscience and convictions have remained the same you could have looked up the legal text at any time.
I had on numerous occasions produced legal advice that indicated that your interpretation of the law is incorrect. On the other hand, when I implored you to seek advice from a competent legal professional, you never produced anything to support your views. In this scenario it was useless to insist with MEPA, consulting with a colleague is not enough.
Point(4) Is very relevant to my arguments in point(3). I had a point of view which was proven wrong and, instead of adamantly insisting on my position, immediately accepted the advice I was given by the ombudsman. This is the normal procedure that has to be adopted in these situations.
You on the other hand have a different forma mentis. What do you exactly mean by “I sought legal advice and, in general, I was proven right.” You are either right or you’re not!
laurence schembri
Nov 6th 2009, 11:37
It is all coming out ib the wash. Mr. falzon I sympathize.
J. Schembri
Nov 6th 2009, 11:32
Hats off to Mr Joe Falzon , for the way he rebutted the unfair accusations he incessantly faces by people who should know better.
Truly honest citizens want the auditor at Mepa to be given all that is needed to watch over this uncontrollable monster which we created.
Government should give full tangible support to people like Mr Falzon who show great integrity in their positions.
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