Jason Azzopardi
The unfolding debate regarding whether, and if so, how, Government should acquire a particular building with historical significance in Guardamangia merits giving the public the true legal picture. Since practically all those, with one happy exception of FAA, who either wrote or spoke about this subject did so without making reference to the obtaining relevant legal regime, it will not be amiss to put the record straight. An enlightened debate is the corollary of a truthful debate.
When I assumed political responsibility for the Lands Department in 2008, I came face to face with a stark reality: our law was completely silent until then as to how the government should and could acquire historical buildings which were in private hands but which were derelict and thus at risk of being lost for all generations to come. At the same time the law until then did not allow anyone to contest in Court the public purpose for which any expropriation of private property used to take place.
Government had, until then, unfettered power to expropriate any building for whatever purported public purpose. At the same time, it was anyone’s guess what monetary value to attribute to an historical building. Was it zilch since it should not be the subject of speculation? Or was the sky the limit since such a building with intimate historical connotations was priceless? In the case of a dilapidated historical building, in private hands, would Government have been acting responsibly if had turned a Nelson’s eye to its plight since the law was completely silent in such a scenario?
I knew full well it was a hard nut to crack. There was the Government’s duty on one side to preserve for future generations that which is common heritage, and on the other hand the fundamental right to private property as enshrined both in the Constitution and in the European Convention on Human Rights (ECHR). It was almost like squaring a circle.
In early 2009 I embarked upon a painstaking study of all the judgements of the European Court of Human Rights dealing with the right to private property as enshrined in the First Protocol to the said Convention which is part and parcel of our laws. In particular I delved in detail in all the judgements from 1982 till 2009, chief of which are the ones delivered against the UK in 1986, Italy in 1997, Poland in 1996, Greece in 2000, and Turkey in 2009. Parallel to this I consulted the Attorney General himself, together with a small number of human rights lawyers to ensure that the legislative amendments would be in line with the ECHR.
After getting Cabinet approval in 2010, the Bill amending Chapter 88 of our Laws was published. Immediately prior to this publication, I asked for the then Opposition spokesman for Lands to meet me and be briefed, as I always did, as a matter of respect. This is exactly opposite to what this “humble” Government is doing with our Opposition. In 2011, Parliament adopted unanimously the Bill I had piloted.
Our expropriation law now has a definition of what is a historical building. It’s either one which is Mepa scheduled or is a building which is of such historical or cultural significance as to render it desirable to acquire the building for the public purpose of maintaing or augmenting the cultural environment in Malta, or is a building so closely connected to events of major historical importance which have significantly contributed to the national memory or to the development of the national historical identity. This was, and to date, is, the only law making reference to our national memory.
This law enshrines the ten main principles emanating from the European Court case law on this subject, including that the legitimate objectives of public interest may call for less than reimbursement of the full market value of the expropriated property “for the protection of the environment or of a country’s historical or cultural heritage”. Indeed, it is “incumbent on the public authorities to protect the historical, cultural and artistic roots of a region and its inhabitants”. Proportionality, legitimate aims, and balance between rights and duties are preserved.
The law, for the first time, provided for judicial review of any Presidential declaration authorising any expropriation of private land, thus increasing the rights of redress to the private person. It also goes into great detail to show how to calculate the compensation Government must pay in the above situations, depending on the age of the property and whether it is freehold or on emphyteusis. Transparency in the law is the leitmotif.
The law has been in place since 2011. It is there to be judicously used.
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