The protection of the environment in Malta has, over the past months, been at the epicentre of discussion without precedent. It has never mobilised and brought together so many diverse groups of society with the object of inducing institutions and politicians to take environment protection more seriously. Also, public opinion is now wholeheartedly and strongly pleading for real enforcement.

The Constitution of Malta treats the theme of the protection of the environment in chapter 2 under ‘Declaration of Principles’. This division of the supreme law of Malta deals, at face value, with the duties of the State and, by connotation, with the rights of the citizen. The relevant provisions are supposed to cater for the safeguarding of the so-called ‘second generation’ of rights in addition to the ‘fundamental (legally speaking) human (first generation) rights’ enshrined in chapter 4.

The citizen’s rights are textually implied. They are expressly non-actionable, legislatively removable by an absolute majority of the House of Representatives plus the assent ‘without delay’ of the President.

The human rights, that necessitate a personal interest, are couched by way of an express locution, are judicially enforceable and are entrenched at a two-tier level (or the Maltese Parliament may tamper with them by garnering at least two-thirds of the votes of its members).

If the citizen can proceed against the State, it will be a revolution in favour of the protection of the environment

Article 9 lays down that “The State shall safeguard the landscape and the historical and artistic patrimony of the nation”. It is, of course, the only proposition, statutorily generous albeit juridically inoperable, that has touched the sensibility of individuals of extraordinary goodwill and love for their motherland and heritage but that, so far, has left no impact at all on politicians.

The late and lamented Maurice Caruana Curran, the self-same judge who delivered formidable sentences from the Bench to create, in default of enaction by the Legislature, the judicial review of administrative discretion, founded Din l-Art Ħelwa half a century ago to give added social value and vigour to the basic yet merely descriptive, if not pious, section.

Article 21 of the Constitution leaves the protection of the environment to the “governance of the country” and the “aim of the State… in making laws”. Remarkably, it denies the citizen any possibility of applying article 9 before an appropriate tribunal. It has remained tale quale on paper while the countryside has been the subject of continuous rape beyond recognition. The promulgation behind it, and the enlightening lesson of the so missed legal and cultural guru, are now over 50 years old.

The elected members, in the role of lawmakers, failed to give more tangible and solid profile to the matter through, say, the jurisdictional widening of the Constitutional Court or the setting up of an ad hoc independent and impartial arbiter to which the citizen would be able to resort for revision on a case-by-case basis at any time. On the contrary, they laid down practically a copycat of article 21 of the Constitution on approving the Environment and Development Planning Act (chapter 504 of the Laws of Malta, articles 3-5) in 2010.

The mechanism of enforcement concerned will have to be allowed, of course, first subject to a list of perpetually-exclusive areas, then in prima facie admissible situations in line with clear-cut and fair but hard and fast criteria that will ensure, on the one hand, that no attempt, let alone abuse, is made to bring the system to bear in a frivolous and vexatious mode and, on the other hand, that procedure is set and decisions taken in an expeditious fashion.

Article 21 of chapter 2 of the Constitution should be revisited and reformulated so that the citizen in the future will be better poised to act as a guardian who watches over the powers-that-be in taking care of the surroundings efficaciously. This will be achieved by having the opportunity – and the responsibility that any access to justice brings with it – to question any rise of a building or any structural development that is illegitimate within the purview of the principal and organic charter of Malta in front of a competent adjudication irrespective of any institutional or political proposal and determination.

Chapter 2 of the Constitution has to change and the State-citizen relationship becomes explicitly citizen-State with an effective right – and, indeed, obligation – bestowed – and shifted – on the citizen by establishing an authoritative forum that scrutinises and adjudicates any individual or collective appeal, particularly for the safe conduct of the milieu. It has to transform for the future from a politically-manipulating instrument to a constitutionally-coercive weapon. The remedy against the State certainly means redress by citizen against the government, or citizen against citizen, or both.

No doubt, if the Maltese Parliament grants a locus standi to the citizen vis-à-vis the State under the Magna Carta of Malta, it will bring about a revolution in favour of the protection of the environment across its whole territory.

Raymond Mangion is head of the University of Malta’s Department of Legal History and Legal Methodology