Last week ('Government's Legalised Rape of Malta's Environment', The Malta Independent on Sunday, 3/8/2025), I stated that Bills number 143 and 144 of July 2025 were in breach of the rule of law: 'The rule of law will now be replaced by the rule of corrupt ministers and developers'. This assertation needs to be explained further for those readers who are not familiar with rule of law literature.

When a State is governed by the rule of law (rest assured that notwithstanding government's platitudes this is not the case in Malta), the implication is that laws are to be obeyed. Apart from some exceptions recognised by the law where it is possible to depart from the written letter of the law (e.g. to take a person's life in the case of self-defence, to exercise freedom of conscientious objection and not perform a task dictated by law contrary to one's conscience, the exercise of prosecutorial and judicial discretion, the granting of certain privileges, immunities, dispensations, exceptions, exemptions, amnesties and pardons under the law, and recourse to the principle of necessity in extraordinary circumstances, amongst others such as principles of Higher Law), the rule of law demands that statutory law is obeyed. Though it must be admitted that there are few legal philosophers who openly dispute that there is an obligation or even a prima facie obligation to obey the law. For instance, Joseph Raz ("The Authority of Law", chapter 12, OUP, 2009) is one such jurist. But that is another matter.

Two important principles, amongst others, emerge from the doctrine of the rule of law. First, that the courts should have review powers over government to ensure that all government action is also in obedience to the law and in conformity therewith, for no government is exempted from the law except in those exceptional circumstances listed above. Second, the citizen should enjoy easy access to a court so that the latter can review government maladministration, bad governance, abuse of power, and corrupt acts. These two principles are the bedrock of the rule of law. These two aforesaid mentioned bills proposing to amend planning laws are a complete negation of these two principles.

Why? Let me explain.

Through these two bills, government will remove the possibility of the Court of Appeal to carry out judicial review of decisions delivered by the government-developers-captured Planning Authority by annulling an illegal permit and through the various restrictions that it imposes on environmental non-governmental organisations, local councils, and residents' associations, the bills will ensure that these public spirited societies will not have access to a court and, therefore, will not be in a position to challenge any unlawful decision of the competent authorities. By dispossessing these entities from having recourse to a court, or practically rendering it impossible to exercise effectively a request for a court to review illegal government action, these public-spirited entities - who are not motivated by greed or piggying - will see their rule of law rights being curtailed considerably if not nullified.

Clause 48 of Bill No. 144 provides that after the expiration of five months from the filing of a third-party objector appeal to a development permit granted to a developer, the latter can carry out the development notwithstanding that the appeal is still being heard by the Court. Thus, whilst the Court is hearing the appeal, all the buildings can be demolished and re-erected with impunity and when the court delivers judgment it would be faced with a fait accompli. Now that is nothing but a negation of justice.

If the judge manages to deliver judgment, say after 8 months from the date of the filing of the appeal and concludes that the permit was issued illegally, s/he will not be in a position - as the courts have been for several years - to order demolition of the illegal structure/s or revocation of permit for clause 48 of Bill No. 144 clearly states that 'if the Court fails to deliver a final decision within five (5) months from the date of filing of the application for appeal, the permit shall no longer be deemed to be suspended' and any development carried after the fifth month onward 'shall not be affected or invalidated by the result of such appeal'.

What sort of remedy is this for a third-party objector who would have paid considerable amounts of money to lodge an appeal to the court without personally gaining anything from those proceedings, engage and pay experts to assist and advise him/her, and invest several hours in unpaid voluntary work to see all this effort going down the drain if the judge does not decide the appeal without five months? Instead of punishing the judge for gross negligence, it is the environment that must bear the brunt of judicial gross negligence. What contorted legal and unjust reasoning is this?

The rule of law, therefore, implies that: First, the State is bound by its own law. Second, the State must uphold the provisions of the Constitution and its values. Third, the State is bound by international legal commitments. Fourth, the law must empower the courts to review government measures. Fifth, citizens should be given easy access to a court and to a prompt and effective remedy. Sixth, fundamental principles of law such as natural justice, reasonableness, proportionality, good governance for the common good of society, accountability, transparency, etc., are to be upheld.

The rule of law further dictates that the government should not act in an arbitrary fashion. This implies, amongst other things, that it is contrary to the law to use public power for private ends as the two bills do to enrich private persons at the expense of society at large: such abuse of power is considered to be arbitrary and this is precisely what the two bills achieve when they ignore totally the common good of society to allow private persons to turn the rule of law on its head simply to satisfy their own avarice to the entire detriment of society and the environment. The two bills do not have a social purpose as one would expect from a pseudo-socialist Labour Party but will be used as a tool to satisfy the greed of a few.

When the government proposes to exempt itself from extant provisions of the law, when it creates obstacles to the courts to review government measures, when it ignores the principles of justice and enacts legislation to serve private interests over the common good and incorporate principles such as those of piggying into legislation, when it carries out belatedly a public consultation with all of Maltese society only after there is an uproar from civil society and not before but, instead, does so only limitedly with a purposefully select few (guess whom? only developers of course who surely do not have the environment at their heart!), when it acts arbitrarily by using public power for private ends, when it curtails access to a court to public-spirited citizens, that government (that is, the current Labour government) is deepening the extant rule of law deficit in Malta.

When it happens that rule of law deficient ministers seize the reign of power, dispossess the courts of their review function, and block access to the courts to public spirited citizens, democracy is on the brink, further consolidating government's current autocratic rule. That is exactly what is happening now in Malta and this rule of law deficit has intensified disproportionately under the populist right-wing leadership of Joseph Muscat and his faithful follower Robert Abela.

By legalising what is currently illegal, the two bills will ensure that the rule of law will come to an inevitable end. For what once was illegal can now be fixed such that everything illegal can be approved by the Planning Authority. If this is the case, one asks, why is the Development Planning Act really needed? Should it not have been repealed and substituted by the law of the anointed ones? Cowboys' law would have been a more appropriate name for the amendments.

If the purpose of the rule of law is the pursuit of the common good, not the private and selfish interests of private persons, then these two decadent bills sin abysmally against the rule of law.

The only thing that can be done is for environmental organisations, local councils, and resident associations to prod a reluctant parliamentary majority down the path of reasonableness, common sense, respect for the environment, and social justice is to come together, protest vehemently as they are doing against such an oppressive environmentally destructive government, and to augment criticism of the Labour government in all the mass media to uncover its true social and environmentally decadent/fraudulent intentions behind these bills. They should also use the public consultation exercise to show government all the faults in the two bills in question and propose a complete overhaul thereof.

There are, and continue to be, indeed, very dark clouds looming on the horizon for Malta's rule of law.

Kevin Aquilina is Professor of Law, Faculty of Laws of the University of Malta