Undermining the right to property

I must confess that all my sympathies lie with the private owners of a site in Sliema that has recently become the target of the anti-development lobby, to the extent that the Sliema Residents Association has even categorically decided what this property should be used for.

If I were to tell the originators of this proposal what they should do with the money in their bank accounts, I am sure they would tell me to mind my own business. That is the sort of rejoinder this proposal deserves.

In our society, every citizen has a right to own property and enjoy it. Experiments with political systems where this right was not sacrosanct produced countries with economies in a shambles of such magnitude that no one dares think about the idea any more. Apart from the fact that ignoring or not recognising this right would be at the peril of our economic good, the right is protected by our Constitution and by the European Convention on Human Rights.

This right is, however, limited. A person's right to enjoy his or her property by using a garage as a mechanic's workshop seriously impinges on the right of the person's neighbour to enjoy his or her property in a peaceful manner. Such straightforward cases should not lead to pointless controversies as one can easily argue that one's rights cannot be enjoyed at the expense of the enjoyment of another's rights.

But the right is also subject to the interest of the community, of the common good. Every building permit should therefore be a necessary limitation on the right to the enjoyment of one's own property: a limitation in the interests of the common good.

The operative word here is 'necessary'. However, the situation is one where the line of demarcation between one's right to enjoy his or her property and the common good is, at best, nebulous.

If one looks at the way the State issues building permits from this angle, one should perhaps look at the Malta Environment and Planning Authority's record and the way it works in quite a different light. For example, whether the owner of a plain nondescript 40-year old façade should be allowed to demolish and replace it is probably an issue that is never considered from the point of view of the rights of the owner. But the individual citizen does.

One can understand that some buildings are to be preserved for various reasons, all pertaining to the common good. But when this 'conservation policy' extends to areas where the common good hardly matters and the issue is reduced to the foibles - or the personal taste - of one officer or some group, people will immediately conclude that they are being unnecessarily harassed.

They could be wrong in many cases. But the instances where the right for enjoyment of one's property should prevail over so-called public interest, that turns out to be nothing but excessive unjustified regulation or personal predilection, are not few or rare.

There is a parallel - although certainly not a perfect one - with the right of freedom of expression. The laws of libel are a limitation of the right to freedom of expression - a situation where there is a clash between the rights of two different people. Again, the situation becomes much more nebulous when the clash is between the individual and the common good.

In my younger days, felt-pen wielding post office and customs officers used to deny people the right to see pictures of bare female breasts - of the human kind. What may have started as a dubiously pious idea soon deteriorated to an exhibition of the foibles and idiosyncrasies of the censor. Giving power to people on others is never a good thing, although it is sometimes a necessary evil.

That particular stupid limitation to freedom is no longer: not because the law was changed but because customs have evolved, and what was considered obscene 50 years ago is acceptable according to the norms of today's society.

While so many are talking of removing all the vestiges of censorship that are still on the statute-book, in the name of freedom of expression, no one is reflecting on how the actions of Mepa in refusing building permits or in imposing conditions in such permits, impinge on the right of an owner to have and enjoy his or her private property.

This week, Parliament started discussing a new law setting up and empowering Mepa to reach its aims, but up to now there was no such consideration in this discussion. What is even more worrying is that the philosophy underlying this 'reform' seems to be that things can be remedied by changing the law, when what is really needed is a change in culture.

And despite all good intentions, the prospect of a change in culture is nowhere to be seen.

Indeed, the new Mepa law will give even more dominance to those who impose their personal foibles on owners who often find that the right to enjoy their property is limited unnecessarily and capriciously.

micfal@maltanet.net