The Government Land Bill being debated in Parliament purports to be a consolidation of all laws relating to the administration of public land. Indeed, the government proposed, and appealed for, a swift passage of the Bill through the House, since there was nothing new being proposed, just consolidation. In fact, it is much more than that.
Hidden in its provisions, the Bill contains new rules and new powers to be given to the government which will make nonsense of the time-tested provisions preventing abuse.
If, in spite of such current provisions, abuse has been alleged in the past in the transfer of public land, with the introduction of the new norms contained in the Bill, such abuse will, in fact, abound.
The Bill groups within one legal statute all the provisions relating to expropriation, eviction of persons without title from public land and rules regulating fairness, transparency and best value in the disposal of public land.
The most pernicious and dangerous provision relates to the list of exceptions to the requirement of transferring public property only through a tendering process.
A new provision has been introduced whereby the minister responsible for land can issue regulations exempting any person, company or organisation from observing the ordinary rule of transfer of land by a tendering process. In the absolute discretion of the minister, public land can be transferred to any person without observing the stringent rules that, till now, have governed such transfers.
Even more dangerous is a new provision being proposed whereby a public notice – not even a regulation – issued by a competent authority will suffice.
So, while the government is proposing that, in a tendering process for land valued at more than €450,000, three architects should be involved in the valuation process, it can circumvent and bypass such a restriction, either by issuing a regulation or else , even worse, by issuing a public notice not having the force of law. This is pure folly and there is still time to remove such provisions from the Bill.
Giving such wide powers to whoever is in government smacks of arbitrariness and arrogance.
Parliament should not abdicate its power to control the Executive by granting such wide discretion to a minister. This provision means that, through subsidiary legislation or even a public notice, the government may change the provisions of primary legislation at its pleasure.
Indeed, when this Bill becomes law, there will no longer be the need of a parliamentary resolution because the Bill is offering a carte blanche to the government to avoid any future parliamentary debate on the transfer of public land.
Another provision relates to the transfer of land next to the seashore by title of emphyteusis without either issuing a tender or at least having a parliamentary resolution. If squatters are to be accommodated and public land transferred to them, such transfer should take place in a fair and transparent manner and not surreptitiously by executive diktat.
As if this were not enough, the Bill grants vast and arbitrary powers to the government to dissolve and rescind public deeds of emphyteusis any time it considers, in its absolute discretion, that the emphyteuta is in breach of any condition of the deed, without resorting to a court of law as ordinary mortals do.
The government should not be exempted from following the procedure that applies to ordinary citizens, bar in exceptional circumstances, say, in the case of land being occupied without title. However, where a valid title is running, it is unfair to grant the government a right which no ordinary citizen has, namely that of ordering an eviction that will have the same force and effect as a court judgment without going to court.
Creating procedural and substantial privileges in favour of the government is an anachronism in this day and age.
As has already been stated in Parliament by Opposition MP Jason Azzopardi, it can also possibly be in breach of the European Convention on Human Rights, because this difference in treatment, in this case depending on whether the occupier to be evicted is on public or private property, infringes upon the legal provisions relating to protection from discrimination.
Be that as it may, irrespective of whether the Bill is in line with human rights, the provisions mentioned above are a dark blemish on an otherwise ordinary draft law that painstakingly encompasses all the public-land-related statutes in one law.
Parliamentary Secretary for Planning Deborah Schembri, a lawyer by profession who is piloting this Bill, should realise that these new controversial provisions should be expunged from the Bill. I firmly believe that she possesses enough common sense to do so.
Tonio Borg is a former deputy prime minister and European commissioner.