L.N. 150 of 2025, the Protection of Agricultural Land Regulations, might have seemed like another run-of-the-mill legal notice that is regularly laid on the table of the House of Representatives by a minister during the "Laying of Papers" stage of a parliamentary sitting.
Perhaps few know that there is a background to this development.
In September 2021, Labour MEP Alex Agius Saliba sent a written question to the European Commission enquiring what measures it has taken in response to the European Parliament resolution of 27 April 2017 and several Court of Justice of the European Union judgments to address Malta's dwindling availability of agricultural land, avoid property speculation, safeguard rural communities and food production, and protect farmland and small farmers.
Apparently, no response was forthcoming.
In Malta, Subsidiary Legislation (SL) provides detailed rules under an empowering Act, issued as Legal Notices (LN) by a responsible Minister, detailing procedures like notification processes, fees, or specific sector rules (e.g., finance, health). The process involves the minister using powers from the primary Act to create an LN, which gets published and adds specifics (e.g., forms, timelines, penalties) to the main law.
Yet L.N. 150 was far from anything similar in its content and far-reaching implications.
The regulations were introduced via a legal notice rather than an Act of Parliament, circumventing public consultation and parliamentary scrutiny. This approach has drawn criticism from bodies like the Chamber of Advocates and the Notarial Council, who argue that measures with such significant implications for fundamental rights should undergo a more transparent and democratic process.
It introduced mandatory registration, strict usage rules, and controversial state intervention powers, raising significant concerns among landowners and legal professionals regarding constitutional rights and practical implementation.
Failure to register can lead to fines and, more controversially, temporary state possession by the agency Riżorsi Agrikoli Malta (RAM), which can then allocate the land to third-party farmers.
If land remains unregistered after a specified period, RAM can assume possession and manage it for agricultural purposes. While the original owner can reclaim the land later by proving title and paying all incurred costs and fines, this mechanism can easily be described as a "de facto expropriation" and a potential breach of fundamental property rights, leading to anticipated constitutional challenges.
The regulations may violate the constitutional right to the enjoyment of one's property and Article 1 of Protocol 1 of the European Convention on Human Rights. This stems from the forced use, restrictions on non-agricultural activity, and the state's power to take possession.
The restrictions laid down unduly interfere with a landowner's right to the peaceful enjoyment and disposal of their property. The regulations impose strict obligations on landowners to actively maintain their land for agricultural use, including tilling at least once a year and submitting annual crop plans. This limits the owner's freedom to use their property for other purposes (e.g., recreation) or leave it fallow, which may not align with personal circumstances or existing planning permits, creating a potential source of dispute.
It is now illegal to advertise agricultural land for sale for purposes other than agriculture. This restricts the free disposal of property and its potential market value for non-agricultural use, which is a further point of legal contention.
Furthermore, the regulations are full of ambiguity and grant broad discretion to the Director of Agriculture and RAM. Key unanswered questions include the specific criteria for refusing a registration application, handling cases of co-owned land with disagreements, and the process for allocating land to "genuine farmers". This lack of clear, transparent procedures raises concerns about potential abuse.
In light of all the above considerations, Shadow Minister for Transport, Agriculture and Fisheries Toni Bezzina timely and legitimately put forward Motion No. 406, calling for amendments to the Legal Notice. Regrettably, though, no proper amendments were made to address the grant of excessive powers to the Agency, with Minister Anton Refalo and Parliamentary Secretary Alicia Bugeja Said rebutting that the regulations maintain a balance between private use and sustainable land management while maintaining transparency and proportionality.
With such a scenario, this now unprecedented legal measure resembles what happened in China in the 1950s. Ever since, the Chinese Communist Party has gradually eliminated private land ownership. Instead, rural land is owned by village collectives, and farmers are granted only long-term use rights. This means farmers do not own the land and cannot legally sell it directly to private developers for non-agricultural uses.
Local governments use this monopoly power to expropriate land from farmers, but, in stark contrast to what our legal notice provides, there are state-determined compensation rates, albeit quite low and disproportionate to the land's real value.
With time, Chinese farmers became aware of how they were being robbed of their agricultural land and protested. For example, in September 2011, Wukan villagers launched large-scale violent protests against the government after they discovered that the village and township governments transferred more than half of their agricultural land to a private company without ex-ante negotiation or providing proper compensation to villagers.
This same abuse of power happened in the Soviet Union immediately after the revolution in 1917. The Soviet regime unlawfully expropriated private agricultural land primarily through a series of decrees and forced collectivisation policies that abolished the right to private agricultural property without compensation, a core tenet of communism.
L.N. 150 represents an abuse of legal powers and government overreach, the result of a misuse of authority for unfair gain or control.
Dr Mark Said is a lawyer