The right to a healthy environment

I don’t hold a high opinion of the environmental credentials of either major political party, and in my view, they are both jointly responsible for the current mess we are in, which is a direct consequence of the leverage certain lobbies (such as developers) have over both of them.

I, for one, will never forgive the PN for creating the right conditions for the current siege on the environment through the extension of the development zones in 2006. Furthermore, I must declare that I have no intention of voting for the PN in the forthcoming general elections for a number of reasons that are beyond the scope of this article.

However, as a lecturer in the Environmental Sciences and as an environmentalist, I cannot help but support the motion presented by Darren Carabott in the name of the PN to amend the Constitution to introduce the right to a clean, healthy and sustainable environment. Not supporting it would have been counter to my principles.

In reality, the motion is extremely simple: It includes in the Constitution the right to live in a clean, healthy and sustainable environment and to the right to enjoy it. It is so basic that it is hard to oppose.

Who, in their right mind, wouldn’t want such a right enshrined? The only logical reason to oppose it is if one has a vested interest in creating an unhealthy, dirty environment. It is equally illogical to oppose the right to the enjoyment of the environment. And yet, the PL and Environment Minister Miriam Dalli came out in full force, declaring the Bill had “serious shortcomings”.

This is the same government that did not hesitate to try to introduce by stealth amendments to the Development and Planning Act and to the Environmental and Planning Review Tribunal Act that could have serious repercussions on the environment and on third-party rights. But when it comes to this simple amendment, they are suddenly “concerned”.

Another ridiculous argument by Dalli and Justice Minister Jonathan Attard is that Article 9(2) of the Constitution already mentions environmental protection in the Declaration of Principles of the Republic of Malta.

What they failed to say (perhaps deliberately) is that this part of the Constitution is non-enforceable. In other words, according to these two ministers, environmental protection should remain nothing more than a declaration – the public should have no right to demand it be enforced.

This amendment is not introducing anything Malta is not already obliged to do. For example, the, UN International Covenant on Economic, Social and Cultural Rights, signed by Malta in 1968 and ratified in 1990, includes an obligation to recognise every person’s right to the highest attainable standard of physical and mental health (Articles 12(1) and 12(2b) of the Covenant).

Numerous publications by the World Health Organisation unequivocally highlight the link between air, water, soil, and noise pollution and ill health, both physical and mental.

It is absurd to oppose the explicit mention of the right to a clean and healthy environment in the Constitution while at the same time claiming to uphold the right to the highest standard of health.

Malta’s ratification of the Covenant should have prompted the inclusion of the right to a clean and healthy environment in the Constitution. The government should have provided an explanation, but instead, what we got was fear-mongering.

We were told that this change would endanger our ‘habits’ (drawwiet), ‘traditions’ and ‘certain economic activities’. If the environment minister’s argument holds any ground, then she is effectively saying that public health, a public good, can be compromised for the sake of private habits, traditions, and economic activities.

To take one example, in Malta, the summer months are characterised by the festa season, which includes the letting off of fireworks. Fireworks include perchlorate salts as an oxidiser. Research carried out by the Chemistry Department at the University of Malta has shown that Maltese soils and water resources are contaminated by perchlorate ion.

My own research has shown that fireworks contribute to the atmospheric load of PM2.5 – very fine dust that penetrates deep into the alveoli of the human lungs. Other colleagues have determined the presence of fine dust from fireworks in indoor dust, too.

It is an established fact that perchlorate ion interferes with hormone production in the thyroid, therefore potentially exposing a large proportion of the population to health effects. Should a large part of the population be exposed to thyroid malfunction just to safeguard an activity deemed “traditional”? Does the label “traditional” absolve us of responsibility for public health?

The same applies to economic activities too.

Some might argue that health could be protected through specific legislation. But here, too, the devil is in the details. I spent 16 years of my life working in Environmental Regulation, and I know too well that the vast majority of the laws in Malta’s environmental statute are derived from EU Environmental Law, which targets issues that are important at the EU level.

It is understood that issues of national importance are targeted by national legislation. Well, you can count the environmental laws stemming from national initiatives on your fingertips. A case in point: the much-touted Noise Law, promised by Mario de Marco in 2011, taken up by José Herrera in 2016 and has since done a Godot. Meanwhile, residents all over the island complain of increased noise.

While the European Convention on Human Rights does not explicitly mention the right to a healthy environment, the ECHR has issued approximately 300 rulings on issues related to environmental protection through the links between this and rights such as the right to life, the right to respect for family life and the right to freedom of expression.

One has to ask whether Malta’s constitutional judges are bold enough to interpret this right in the same way as the ECHR does, in all the cases that deal with environmental issues, especially in view of the fact that the current administration has not shied away from unduly pressuring the judiciary.

Enshrining the right to a clean environment in the constitution should reduce any reticence to rule in favour of the environment.

This issue should have enjoyed bipartisan support in Parliament. It is useless for the environment minister and the justice minister to hide behind their claims that the government has “strengthened” environmental law in Malta.

There will always be issues that are not captured by environmental legislation. Enshrining enforceable rights in the Constitution would provide Maltese citizens with some protection against the onslaught on the environment by countless vested interests – interests the PL seems intent on championing over the public good.

By enshrining the right to a healthy environment, Malta will not be reinventing the wheel. A number of countries have already implemented this, including  Spain, Portugal and Greece.

In July 2022, the United Nations General Assembly, through resolution A/RES/76/300, recognised the right to a clean, healthy and sustainable environment as a human right.

Denying citizens the right to redress, even for environmental issues, has become a habit.