The European Convention deems the enjoyment of private property to be a fundamental human right. Having a social conscience, it allows the State to take over private property, or interfere with its enjoyment, but under two eminent conditions: it can only be taken or limited in the public interest, and against payment of adequate compensation.
No law defines what ‘public interest’ is and the courts improvised as chaotically as they could, not infrequently tailoring public interest to be nice to who was in power and had a loud bark. The government was given an almost blank cheque to requisition, expropriate or take by any title, property belonging to private individuals.
A foretaste came in the Galea vs Holland case. The Labour Party already had a club in the main square of Paola, but wanted to expand. No problem, they set their eyes on Mr Galea’s home next door. The Labour Party asked the Labour government to issue a requisition order, and Galea’s home overnight became the extension of the political club. Galea sued in court, claiming that the taking of his property was not in the public interest, but to advantage, at his personal expense, a purely partisan interest.
The guardian of his human rights invented lol; the party in government can take your property to give it to the government party – what finer public interest can you expect?
Had this been even-handed, it would have been equally wrong, but at least, equitable in a skewered sort of way. But not one single property was ever taken by the government to be used as an Opposition club. In the ‘public interest’ clearly only meant taking private property from private owners to give it to the Labour Party. To the extent that, when the Opposition party acquired – by perfectly legal title – premises in Luqa to open a club, the government slammed a requisition order on it, and the Opposition party lost its club.
According to our courts, requisition orders have two functions: to help the government party open its clubs and to prevent the Opposition party from opening its own. Having the constitutional court’s reassurance that the government party can seize private property to use for its partisan propaganda, the Labour Party in government seized private property in Santa Venera, Naxxar, Paola and St Julian’s to turn them into political clubs.
The Constitutional Court actually gave the widest definition possible to justify almost all grabs of private property as being in the public interest: “Only a deprivation of property effected for no reason other than to confer a private benefit on a private party would not be in the public interest” (Abdilla). If you can navigate through a triple negative, this means that EVERY seizure of private property is in the public interest, except when it cannot be other than a private business. This is standing the Convention on its head and tickling its feet in the process. According to the Convention, the RULE is the fundamental human right to enjoy your private property without interference, and the EXCEPTIONS are expropriation or requisition. Only what is manifestly in the public interest should justify deprivation of public property. But the Constitutional Court ruled the other way round.
Lol. The party in government can take your property to give it to the party
The Vella family knew something of this State depredation to enable private individuals to enjoy popular pastimes (and by the government to harvest popular votes). They found themselves victims of a double whammy. Josephine Vella owned two properties in a central crossroad in Ħal Kirkop. The committee of St Leonard Band Club, run by a private organisation, were looking for premises, and the government did not mind being generous with other people’s belongings: why not hijack one of the Vella houses? The housing secretary issued a requisition order. Vella out, band club in.
Many years passed, and the band club wanted to expand. The government again obliged: why not take the second Vella property too? A second requisition order, and, hey presto, the trombone players could stretch their legs better, the government could count on more votes, and Vella could enjoy unwelcome tenants and be showered with peanut husks as punitive rent.
The double victim then challenged the second requisition order, but the court found that taking private property to accommodate a private enterprise was perfectly in order. What better public interest than making Peter poor to make Leonard rich? Thankfully, the Court of Appeal overturned this perverse judgment and quashed the second requisition order.
But when, later, Vella challenged the first requisition order, the Constitutional Court reverted to its previous applause for the hijacking of private property “in the public interest”. Predictably, only last February, Strasbourg ruled that in making Vella bear most of the social and financial burden of supplying the band club with premises, the State had failed to strike a fair balance between the interest of the community and Vella’s right to her property. Vella’s property was not requisitioned to secure the social welfare of tenants and prevent homelessness, and the Strasbourg court questioned whether the interference with private property qualified as in the public interest. It punished Malta with hefty damages.
The authority of governments to interfere with the enjoyment of private property has generated bizarre results. The government operated two power stations, one highly polluting, coal-fired, second hand, in Marsa, and the other, state-of-the-art, conforming with all EU standards in Delimara. They both interfered with the enjoyment of the surrounding properties. And the government paid millions upon millions in compensation to the inhabitants of Marsa and Delimara, because of the inconvenience to the enjoyment of their private properties. The Marsa inhabitants proved to be particularly privileged, because the compensation they received for a lifetime’s embrace by loving grime was nothing short of lavish.
No, wait. How much did the Marsa victims receive for being sickened for years by the pestiferous power station? Right, nothing – not one cent. And how much did one summer resident of Delimara receive for having, not his home, but his summer haunt inconvenienced by the nearby power station? Right, a million – he was not a Marsa stevedore, he was a former MLP prime minister. The courts gave him the maximum compensation, all from taxpayers’ monies, as if his property had been taken from him – but let him keep his property nonetheless. No one asked to see his title to the property anyway. No one asked to see the building permits for that summer residence. The courts gave everything and asked nothing. The Marsa residents? Their breathing disorders? Their cancers? The soot as devoted bedfellow? Naaah, they were not MLP politicians.
The Constitutional Court had ruled in other instances that when the government interfered with private property to further projects with a social purpose or of national importance, the compensation could be scaled down considerably (Xuereb). But then the Court forgot all about the social purpose and national importance of a new clean power station – no discount at all. Full compensation – as if that property had not merely been inconvenienced but had actually been taken off the politician – and let him keep the property nonetheless. The courts apply that discount to insignificant mortals, not to former labour ministers.
Let’s round off with the Manoel Theatre. Malta’s national theatre had no foyer where proper offices and ticketing facilities could be housed and which patrons could use during intervals. Rain or shine, they just clogged the street outside. The theatre desperately needed additional space. The government annexed an adjoining private palazzo to house the foyer and where some rents could be raised to subsidise the crippling costs of the national theatre. For once, all for an undisputed public purpose. Nothing wrong with that.
What was sickeningly wrong was the insolent pittance the government was disbursing to keep this prime site. The owners sued for their rights. The Constitutional Court, on the pretext that parts of the property were being rented out to fund the activities of the national theatre, found for the owners. But then it granted a horrendous ‘remedy’. Instead of ordering the government to pay realistic compensation to the aggrieved owners, it ordered the return of the building. With one insane stroke, it defeated the unquestioned ‘public purpose’ of the taking of the property and mutilated the national theatre of its indispensable annexes. Unbelievable!
Compare with how the Constitutional Court dealt with the requisition of private property in Santa Venera to be used as an MLP club. The court acknowledged the breach of the owners’ rights. This time round, however, was the party to lose its club? As if! The government (not the Labour Party) was to pay the owners substantial damages. Did you know that you and I, as taxpayers, have paid the owners thousands upon thousands of euros out of our pockets, for the Labour Party to retain its club in Santa Venera?
Giovanni Bonello served as judge of the European Court of Human Rights in Strasbourg for 12 years.