The proposed “development” of a bungalow village on the islet of Comino has become a matter of public outrage, uniting public opinion irrespective of usual tribal loyalties.

And understandably so.

Comino is the Maltese version of Paradise on Earth, a little corner of our overcrowded country left (semi-)undisturbed to serve as a place where families and individuals can relax without breaking open the piggy bank.

And that’s how we want it to stay: semi-undisturbed. (Ideally, it should be returned to its pristine state – covered in woodland.)

The people at large are – to put it bluntly – fed up with tycoons devouring our land and spoiling the landscape to make money which they then spend narcissistically and, most probably, abroad. Long-term, this is nothing short of national self-immolation as a sacrifice to private profit. Capitalism is good, but only when it benefits the entire community.

This communitarian approach to individualist wealth-making is the philosophy behind two important principles found in our Constitution, about which I’d like to write today.

Article 9 of our Constitution...

... reads as follows:

“(1)  The  State  shall  safeguard  the  landscape  and  the historical and artistic patrimony of the Nation.

“(2)  The State shall protect and conserve the environment and its resources for the benefit of the present and future generations and shall take measures to address any form of environmental degradation in Malta, including that of air, water and land, and any sort of pollution problem and to promote, nurture and support the right of action in favour of the environment.”

The wording is self-explanatory.

There could indeed be a problem in the Maltese version, which uses għandu, that some people irrationally consider as the equivalent of both “shall” and “should”. The English version is crystal-clear: the State shall. These are positive obligations, not items on some wish-list.

The problem with Article 9 is Article 18, which lays down that, “The State shall encourage private economic enterprise.”

These are two concurrent though (apparently) contradictory aims of the Maltese State: to safeguard the landscape while encouraging private economic enterprise.

How to solve the conundrum, if a conundrum it is?

Self-evident solution

To my mind, the communitarian Article 9 overrides the individualist Article 18.

It cannot be otherwise.

For if we ruin the environment, then there’s no scope left for private enterprise.

At the same time, it is obvious – unless one is a deluded megalomaniac – that private enterprise has to have limits, one of which is the protection of the environment. I don’t think I’m claiming anything outlandish here.

Then again, in this crazy world of ours, you can never take anything for granted.

Just when you thought you had it all figured out, you realise there’s the infamous Article 21:

“The provisions of this Chapter shall not be enforceable in any court”.

“This Chapter” refers to Chapter 2 of the Constitution, which contains fifteen principles of which I’ve quoted only two (environment and enterprise).

Giovanni Bonello

In his extraordinarily good book – which I can’t praise enough, and which I have to recommend once again to this newspaper’s readers – Misunderstanding the Constitution, Judge Bonello explains the background to why Article 21 could be understood as a hurdle to the proper application of Article 9.

Let me quote.

“The rot started after 130 doctors in government service were fired en masse in 1977. After their dismissal, a law was then passed prohibiting them from ever, then or in the future, working in private clinics and hospitals. The unemployed (and henceforth unemployable) doctors challenged this law, among others, on the ground that it struck against the very core of the doctors’ “right to work”, enshrined as a fundamental principle in Article 7 of the Constitution.

“Forget it, said the spineless Constitutional Court that then gleefully rubber-stamped every abuse of power – the right to work is not an enforceable right!”

Article 21, however, doesn’t stop there. It continues: “but the principles therein contained are nevertheless fundamental to the governance of the country and it shall be the aim of the State to apply these principles in making laws.”

And Giovanni Bonello too continues: “Very short shrift to it being a fundamental principle in making laws. What the constitutional courts of Malta said in practice is that laws which violate the basic Principles established by the Constitution itself, are perfectly constitutional.

“By then, the courts had fallen in love with their own impotence.

“Given the craven and defeatist stance adopted by the courts on the uselessness and unenforceability of the Principles, no one, that I am aware of, has, since the doctors’ case, ever tried to challenge the validity of any law on the ground of its inconsistence with the Principles.”

Judge Bonello is obviously right. The principles found in Chapter 2 of the Constitution aren’t there to embellish the constitutional document, but to be followed by the State.

In my view, the Constitutional Court misunderstood the hybrid nature of the Constitution – hybrid because it lies somewhere between political theory and law.

It “misunderstood” on a “notional” level, let’s be clear. From the practical point of view, there must have been other considerations at the back of the Court’s mind, including physical violence... remember, it was only a few years later when Lino Briguglio penned his L-Elementi Kriminali u Vjolenti fi Ħdan il-Partit Laburista.

Anyway, let’s put history aside.

The point is that Article 21 of the Constitution obliges the Maltese State to apply these principles. Its wording is as clear as can be: “fundamental to the governance of the country”.

“Governance” is not limited to law-making, but extends also to administrative and executive acts.

In other words, Article 21 imposes on all State agencies, branches, organs, and emanations (in whichever form) the positive obligation to apply the principles found in Chapter 2. Including the principle contained in Article 9, that is to say, safeguarding the environment.

Any permit given to “develop” Comino would violate the Constitution.

Writing on water?

The Roman poet Catullus, who was madly in love with a liberated woman called Clodia, wife of Metellus, dedicated many poems to the object of his desire. It seems, however, that her enlightenment was not just a facade: the woman only wanted the fun, with no emotional attachment... or, as it’s referred to in common parlance, “friends with benefits”. But he craved for more, and as she never reciprocated, it ultimately killed him. Catullus died young, literally of a broken heart.

Anyhow. In one of his poems (number 70, to be precise), Catullus laments,

“She says: but what a girl says to her eager lover,
should be written on the wind and in running water.”

We have a similar saying in Maltese: ħożż fl-ilma, which is a accurate rendition of “write in [on] water”.

Am I writing my constitutional musings on water?

Giovanni Bonello, who seems to have given up on the political maturity of this country, would say yes.

But I, being an incurable idealist, would say no. We have to start behaving as a modern European State.

The Prime Minister would probably join me in paying homage to these principles, as he believes that we should allow the institutions to work.

Yeah, but I think he would also furtively wink at the faithful.

Isn’t it accepted wisdom that being cunning is more beneficial to the country than being long-sighted?

The Joseph Portelli Saga and the Dictatorship of Money

And now for something (perhaps not so) completely different.

Watching the interview with real estate tycoon and Ħamrun Spartans FC President Joseph Portelli was at once enjoyable and saddening.

Enjoyable because the Maltese ear always enjoys the Gozitan dialect.

Saddening because of the spectacle the Gozitan multi-millionaire made of himself.

Anyway, I disagree with the way the MFA has treated President Portelli.

So, it’s his dream to play 10 minutes for Ħamrun Spartans? Let him play! Why deny him the opportunity? After all, this is football, not some solemn haute-culture activity. It’s mass entertainment... so let him entertain the masses. I simply can’t understand what the problem is. The guy wants to play for 10 minutes, after his team has already won the tournament? Let him! What’s wrong with a guy enjoying himself while entertaining the crowds? No harm’s done and everybody gets to have a good time!

There is obviously a “but” – there always is. Grown-ups pay when they want to have it their way – some pay hundreds (or thousands), others millions.

If I were the MFA, I would put a price on the privilege President Portelli’s asking for. As he can afford to pay millions (he claimed he gives € 1.5 million to the Club each year), ask him to pay millions. If I were the MFA, I would grant him his wish, but if and only if he satisfies three conditions.

One. A three-million-euro donation to Id-Dar tal-Provvidenza.

Two. A three-million-euro donation to an orphanage in Malta or Gozo.

Three. A commitment to donate four million euros each year (until he steps down from Ħamrun Spartans President) to a Foundation or other NGO that restores historical buildings and/or artefacts of cultural and historical value.

That way, it’s a win-win situation. He gets to play his 10 minutes while at the same time compensating for the havoc he’s wreaked to Malta’s landscape and natural and urban environment.

Through its decision, the MFA has achieved absolutely nothing... despite the involvement of that genius, Joseph Muscat. Or rather, they did achieve something. They irritated President Portelli. He’s now considering “investing” his money in some Italian Serie B or Serie C club.

Great! Millions earned through the destruction of Malta’s landscape will now be “invested” in Italy! What a genius this Joseph Muscat!

I would actually allow all Football Club Presidents to play for 10 minutes (once their club has won the tournament), if they make similar donations. (The amounts can be downsized to reflect their real net worth if they’re not as rich as President Portelli.)

In this way, the MFA would be fostering a social-responsibility culture in the country. OK, so you’re rich. Now what are you doing for the common good? How will you contribute to the ethical balance between your own personal economic growth and the welfare of society and the environment?

Otherwise, it’s just the Dictatorship of Money.

Ah, there was also a sickening part in that interview, when President Portelli uttered the ultimate oxymoron: “Everybody develops in Outside-Development Zones.”

That was so sickening. On so many levels.

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