Malta has experienced a progressive degradation of the environment over the last years.
Last October, we had a raging public controversy of unprecedented proportions when parliament, commanded by a Labour majority of MPs, shot down the Opposition's Private Members' Bill seeking to amend the provisions of the Constitution by introducing and recognising the right to live in a clean, healthy and sustainable environment as a fundamental human right.
While one side described the Bill as 'historic', the government labelled it as 'immature and irresponsible'. The PN's concept of a human right to a healthy environment was viewed as a novel, even radical, idea.
There is an ongoing debate about the scope and potential utility of the right to a healthy environment. Supporters argue that the potential benefits of constitutional environmental rights include stronger environmental laws and policies, improved implementation and enforcement, greater citizen participation in environmental decision-making, increased accountability, reduction in environmental injustices, a level playing field with social and economic rights and better environmental performance.
Critics, on the other hand, argue that constitutional environmental rights are too vague to be useful, redundant because of existing human rights and environmental laws, a threat to democracy because they shift power from elected legislators to judges, likely to cause a flood of litigation and likely to be ineffective.
Environmental protection demands strong laws that establish enforceable minimum standards to address nationwide problems.
To date, our constitution requires the state to protect 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.
It conspicuously lacks any effective enforcement steps or mechanisms that can be taken by the ordinary individual in the event of any law or action that threatens to violate such a principle.
More and more constitutions around the world, from Bangladesh to Bolivia, and from the Philippines to the countries of the EU, are explicitly protecting environmental rights and the values of a clean and healthy environment.
Courts have had widely varying reactions to the prospect of enforcing constitutional environmental rights. Some courts have resisted the endeavour, fearing a deep and irreversible delve into policy and line drawing, tasks better left to politically accountable legislatures.
Others, however, have embraced the challenges boldly and apparently fearlessly, determining where the needs of industry and economic development end and the demands of sustainable environmental aspects begin.
In many instances, environmental rights are recognised not as substantive entitlements, which would allow litigants to sue if the government polluted their land, waters or air, but as procedural rights.
Examples of procedural rights include imposing on the governments the obligation to consult with the public and stakeholders before taking actions that will affect the environment or giving individuals the right to participate in governmental processes that will affect their environment.
Constitutional environmental rights come in several different forms. They can be enforceable or not. They can be expressed or implied by other guarantees, notably the right to life, the right to dignity, or sometimes more specific rights, such as the right to health.
While international law plays a vital role in establishing norms and offering a court of last resort for human rights violations, the reality is that most of the action to protect and fulfil rights occurs at the national level. Within a country, a constitution is the highest and strongest law, as all laws, regulations, and policies must be consistent with it. A constitution protects human rights, sets forth the obligations of the state, and restricts government powers.
Is the constitutional right to live in a healthy environment just a theoretical concept with minimal practical implications? Or is this right a powerful catalyst for accelerating progress towards a sustainable future? The best way to answer these questions is by examining the experiences of the 95 nations where this right enjoys constitutional status.
New research demonstrates that the incorporation of the right to a healthy environment in a country's constitution leads directly to two important legal outcomes: stronger environmental laws and court decisions defending the right from violations. Evidence indicates that the other anticipated benefits of constitutional environmental rights are also being realised, while the potential drawbacks are not materialising.
In 78 out of 95 nations, environmental laws were strengthened after the right to a healthy environment gained constitutional status. Laws were amended to specifically focus on environmental rights, as well as access to environmental information, participation in decision-making and access to justice.
In some nations, the constitutional right to a healthy environment has become a unifying principle, permeating the entire body of environmental law and policy. This is most clearly the case in Argentina, where the reform of the constitution in 1994 to include the right to a healthy environment triggered the need for a new generation of environmental legislation.
The constitutional right to live in a healthy environment represents a tangible embodiment of hope, an aspiration that the destructive, polluting ways of the past can be replaced by cleaner, greener societies in the future. While no nation has yet achieved the holy grail of ecological sustainability, the evidence indicates that constitutional protection of environmental rights can be a powerful and potentially transformative step toward that elusive goal.
Dr Mark Said is a lawyer