The news that somebody even dreamt of submitting an application to build a swimming pool a few metres away from the Ġgantija Temples calls for some analysing.

I know neither who the applicant is nor the architect, and frankly it does not matter, as I want to raise a point of principle. Also because, from what can be gleaned from the press, the persons involved are not politically exposed.

As expected by the rational part of society, the Planning Authority rejected the application. So, kudos for that.

Then again, it was no big deal. Only if the board were composed of certified lunatics would the PA have acceded to that application. One does understand the cynicism surrounding the PA, particularly the cynicism generated by the persistence of suspicions that friends of friends oil the wheels over there. However, there are circumstances when it is self-evident that those wheels can be oiled by no friend of friend, no matter how refined the lubricant. The Neolithic temples probably are the ultimate "development" taboo, the one zone nobody - no Minister, no Head of Staff, no saint - can perform the miracle and get the go-ahead for its "development" or that of its neighbouring area. (Or, to put it differently, we have not yet reached that stage of collective insanity.)

What makes me shake my head in disbelief is that what I am saying should be obvious to one and all. It is so obvious that one is left speechless when an architect - somebody who is a University graduate and should be endowed with a modicum of culture and common sense - submits such an application in the first place. Let us forgive the owner, who might be a victim of his own benighted miscalculations. But an architect should know better. Certain applications should not even been drawn up, let alone submitted. The client should have been politely shown the door.

And this is the point I want to zero in on.

Let us make a comparison with other professions. Notaries have a duty, laid down in the law regulating their profession, not to draw up deeds which go against public policy. Notaries take this limitation to the freedom of the volition of the parties very seriously and prefer to err on the side of caution. (The notary's prudent nature induces people to think that notaries know less law than advocates.)

I stand to be corrected but it would seem that architects have no such duty. All ODZ applications (i.e., applications to deviate from known public policy) seem to be fine. Their profession seems somehow to remind one of advocates working in the criminal field, who take no decision but have to convince the Court to act on behalf of the public good (either by punishing somebody found guilty as charged and restore social harmony, or acquit an innocent person and avoid a graver injustice).

The architect has to argue that the environment (be it historical, urban, or rural) is the offender and that it is on trial for denying the applicant the full enjoyment of his rights as lawful owner of the property. In the case of the Ġgantija Temples, the argument would have had to be that the 6,000-year-old structure denies its neighbours their right to jigger away to their heart's content on their own patch of land.

The architect has to base his case on the written law, very much like the criminal lawyer. The good criminal lawyer knows that where the law wants, the law says and that there is no offence if the law does not say so. Therefore, the prosecutor endeavours to convince the court that the facts before it match the facts envisaged by the law, and that the accused should therefore be found guilty as charged. The architect seems to follow a parallel strategy: convince the Authority that the proposed development satisfies the written law and that the environment should be punished for interfering with the full enjoyment by the applicant of his property.

I find this quite disturbing. If a zone is declared outside development, how can it be even thinkable to apply for development? The logic seems to be akin to this: you cannot kill, but murder is sometimes justifiable or excusable, and therefore everybody deserves a fair trial. Similarly, you cannot develop in an outside-development zone, but development is sometimes justifiable or excusable, and therefore everybody deserves the right to submit an application. Even if it means applying to build a swimming pool a few metres away from a world-heritage prehistoric site!

To my mind, it is this ultra-liberal attitude that has to develop... from its current barbarity to some degree of civilisation. The logic in planning should not be that of the advocates (convince the Court that your thesis is right), but that of the notaries (certain deeds are precluded in advance because they run counter to public policy). There are no two ways about it: it is not that a notary can publish the deed hoping to convince the court not to annul it. The notary cannot publish such deed, tout court. Similarly, architects should not be allowed to submit applications to develop in outside-development zones. Tout court.

All of this reminds me of an incredible sign I once read above a door in one of Milan's airports: Pericolo: l'ingresso é assolutamente vietato - 'Danger: access is absolutely forbidden'. What does that "absolutely" mean? Access is either forbidden or it is not; if there really is danger behind that door, access cannot be negotiable! The same with ODZs. Development is forbidden. Tout court. No qualification. Otherwise, what would the O in ODZ stand for? Optional? Obtainable? On-demand?

The rationale underlying the law has to change. It has to abide by the principle that no private ownership is absolute, but all ownership exists in the context of a community and necessarily has to respect the higher dictates of that community's common good. Nobody can abuse his or her right.

The problem is philosophical. Originally, liberalism implied the freedom to exploit your capital to the maximum, with little or no shackles. In time, it expanded the idea of unencumbered exploitation from the ownership of things to the ownership of the body, with abortion, pornography, drug taking, formalisation of sexual freedom, and so on, being given free rein.

It is an internally coherent ideology, but manifestly leads to self-destruction in the long term. It is true that "in the long run, we're all dead", but it is death through suicide. The "it's my property/it's my body" ideology extends to our attitude toward the environment. If the exploitation of capital and body is unshackled, so should the exploitation of the environment be unshackled.

For the law to change, this mentality has to change. A revolution is needed. Not the neo-liberal earthquake foggily promised and punctiliously delivered by Muscat's Movement. But a conservative, non-neo-liberal revolution. A return to certain perennial, immutable principles. That said, I am still waiting to see who will rise to the political occasion.

My Personal Library (19)

A judge who sits on a foreign court recently messaged me about an ancient, legally romantic procedure invoked on one of the Channel Islands. It's called the Clameur de Haro and it's a cry for justice, asking the Prince to intervene because somebody's possession of their land is being disturbed or interfered with. It is an ancient injunction, harking back to the early customary law of Normandy, even to the times of William the Conqueror. The Law of Normandy still obtains in Jersey and Guernsey.

The judge mused, "Ah, if only something similar were available to avoid a certain type of real estate development!"

The Haro injunction is described in detail in Le Grand Coutumier de Normandie: The laws and customs by which the Duchy of Normandy is ruled (a 2009 publication of the Jersey and Guernsey Law Review somebody thought fit to gift me...). It does not depend on a law enacted by the modern (liberal) State but on an ancient law which is still valid.

One wonders whether the application of the ancient law of Normandy was limited only to the Duchy of Normandy, or whether it extended to the Norman Kingdom of Sicily (which included Malta). And in the latter case, could it be claimed that it would still apply to Malta today since it has never been explicitly repealed?

Ah, the foibles of the bibliophile...