Human rights not applicable to all

Am I the only one confused by the recent European Court of Human Rights (ECHR) judgement on fireworks let off near people’s homes?  Does its ruling mean that the granting of permits for firework displays close to people’s homes did not breach human rights? Or is it just in the particular Zammit Maempel case that human rights have not been violated? I would assume the latter. However, the ruling can still be cited in any future similar dispute. Besides, it also applies to anyone living in a zone with a hundred or less residents. OK, if the family knew about the proximity of the fireworks displays when they bought their home that might be a valid argument, but surely the other reasons given by the court for rejecting the complaint are not that reasonable. On the one hand, it claimed that the complaint was admissible because “their (the complainants) right to respect for their private lives and home had been disturbed sufficiently”, and there is not doubt that the latter was justified. It then underrated the damage done by the hoisting of petards near people’s homes, on the basis that only a few residents live in that particular zone. Although the court declared that “ the physical and psychological state of the applicants had been affected”, it added “even if only temporarily” since, it said, the noise produced by the fireworks had lasted only for “a limited time”. Here, in Malta, we live through a ‘blitz’ situation every summer. Even if the noise only lasts “for a limited time” (sometimes up to an hour or more) in one location, why should anyone have to endure “physical and psychological” negative effects? The truth is that the “limited time” argument does not wash in Malta. As soon as one bombardment stops another in a different locality kicks off. It is precisely our size (ECHR found that the distinction between inhabited and uninhabited areas had to keep in mind Malta’s small size and densely populated nature) that makes the noise unbearable. We just can’t get away from it wherever we live on this tiny rock. It must be absolute hell for the unfortunate people who live close to any hoisting. Yet, the ECHR agreed with the Maltese Law that defines an inhabited area as being a place where more than 100 people live. It ruled that the family’s claims of discrimination were manifestly ill founded. It said that given Malta’s geographical limitations, the distances under discussion and the government’s efforts to minimise inconvenience, any difference in treatment between those living in “inhabited” and “uninhabited” areas was objectively justified. Funny, I thought that “uninhabited” meant no one lived there, as per the dictionary “without human habitation”. Is the law being an ass here? The issue was over the interpretation of the law on the safe distance for the firing of petards from an inhabited area. Does the ECHR think it is dispensing justice when it confirms that the people who live in a zone that has 100, or less, residing there have not got the same right to human rights as those living in a 100+ zone? The latter is a thorny subject, which has been under dispute for years. After complaints to the Commissioner of Police in the mid nineties got no results, an appeal was made to the Ombudsman. In 1999, he concluded that the Commissioner of Police should seek expert advice on the subject. A group of experts entrusted with looking into the situation recommended that the fields used for the firework displays should be classified as a restricted area under the applicable regulations. That recommendation was not taken up. Interestingly, in its recent (2011) judgement the ECHR said that since the Commissioner of Police had not followed the experts’ advice, the Zammit Maempels could have challenged “his/her” (does a female police commissioner exist anywhere yet?) decision in ordinary civil court proceedings; therefore, an avenue for seeking redress at national level had been open to them. Since they had instead undertaken constitutional redress proceedings, it could not be said that they had not had an opportunity to make their views heard. The fact that the outcome of those proceedings had not been favourable to them was not sufficient to establish that they had not had access to the decision-making process, ruled the ECHR last week. In 2001, the Ombudsman had criticised the issuing of licences, in particular as regards the applicable distances and type of fireworks. Yet, the Commissioner of Police has continued to issue permits for two feasts a year in the disputed area ever since. Which raises another important issue, namely, is there a point to having an Ombudsman if everybody ignores his (it’s pointless having his/her) recommendations? Is that organisation just another pen pusher’s den? There are plans to make that office financially autonomous. But will that turn the poodle into a Doberman? Having got nowhere, in 2005, the applicants instituted constitutional redress proceedings against the Police Commissioner and the Attorney General in the Civil Court in its constitutional jurisdiction. In 2009, Mr Justice Raymond C Pace ruled that the definition of what constituted an inhabited area did not bring about a balance between interference by a public authority and what was necessary to protect the privacy of an individual. He found that the legal definition brought about discrimination between different groups of persons. He also noted that the Ombudsman had concluded that the Police Commissioner should not have issued the licenses, based on the findings of experts on the matter. He ruled that the definition of “inhabited area” in the law governing the granting of permits for the letting off of fireworks was in violation of a family’s fundamental human right to privacy and to freedom from discrimination. However, that decision was reversed on appeal. That court ruled that the inconvenience suffered by the family was self-inflicted, as it had moved to an area where fireworks had been let off for over 70 years. While the noise and peril from the fireworks had caused the applicants some “inconvenience”, the relevant regulations had been applied correctly and had struck a fair balance between the applicants’ rights and the interest of the community as a whole, said the Constitutional Court. The ECHR agreed with the latter. It noted that although “the noise levels could have impaired the hearing of at least one of the applicants, there had not been a real and immediate risk to the applicants’ life or personal integrity”. So the impaired hearing of at least one of the applicants was not a “real risk” to personal integrity? Firstly, it does not look like the ECHR was aware of the levels of noise, especially those produced by the petards. I don’t know whether any data was presented on that score. But I do know that they cause discomfort, and sometimes worse, to quite a chunk of the population who live miles away from where the fireworks are let off. So one can only imagine the level of noise endured by those living close by. So how does that explain “no immediate risk to personal integrity”? One of the reasons the ECHR gave was that it was accepted that firework displays are one of the highlights of village feasts, "which undeniably generated an amount of income and which, therefore, aided the general economy". So there we have it. It is all about the money. As for citing “religious heritage” to uphold their ruling, it is obvious that the ECHR was not aware that the Church in Malta set up an Environmental Commission, which strongly criticised the overuse and pique involved in the fireworks industry and published leaflets demonstrating the negative side of fireworks. The Court cited that the government had been aware of the dangers of fireworks and had put in place a system whereby people and properties were protected to “a certain degree”. Thus, the issuing of permits for firework displays, as well as for transportation and uploading of fireworks, had been provided for in specific regulations. Furthermore, police inspectors and fire fighters had monitored the letting off of fireworks. Insurance covering the activity had also been mandatory, it said. The fact that insurance cover is now mandatory is further proof of the risks involved. Of course the amount of deaths and injuries caused by explosions at fireworks shacks, one cannot really call them factories, was what made that move necessary. Lives of the people not involved in the making of fireworks may not be directly threatened, but a large chunk of the population’s lives are made unnecessarily stressful by the pervasive noise pollution the Maltese have to endure all through the summer months. But of course, unfortunately, this was not what the ECHR was presented with. The fireworks industry has an impressive and powerful lobby and challenging it requires much more than the endeavours of one family. Article published in the Malta independent on Sunday27 November 2011

Read More

U turns, best practice and transparency

Having a hard time to get my teeth into what to write about, despite the “Dog attacks baby” story and Mercaptan, not to mention the Budget, I found a nice morsel in yesterday’s events, which finally gave me something to really chew on. The Nationalist Party (PN) is holding its General Council meeting this weekend with the theme “We are proud of our country because we believe in our country”. Well, no one can dispute that sentiment. But wow, is the PN getting that desperate? It is telling us that it is planning to promote legislation to grant rights to non-married couples, including gay couples. Again, there is absolutely nothing wrong with that line of thought, but it does rather stick in the gullet coming from a party that fought tooth and nail to keep divorce out of the country very recently. The PN has always been a Church ally, especially in the belief of the nuclear family. But, it seems that the party has seen the light and that the time has come for the two institutions to separate. It is stating that while it was proud to be inspired by Catholic values, it was also aware of the clear distinction between Church and State. A very big step for the PN. Their polls and the divorce debacle (for it and the Church) must have set the alarm bells off at Pieta. It can’t be to counterattack the Cyrus Engerer saga? Surely not. The announcement that the PN is to become progressive in its thinking demonstrated a lack of depth and had undertones of panic. It is covering as much lost ground as possible by stressing that civil liberties must be strengthened in areas of individual privacy, freedom of expression and censorship. It wants to win votes by telling us that it is accepting that society is not static and that it has to learn to accept changes to Malta’s ‘traditional’ way of life. That it is ‘listening’. Yet, it does not want to lose a large chunk of its voters – the reactionaries, who have always seen the PN as their champion. So it emphasised that the family remains at the core of society. It wants to reassure them that the PN remains committed to work to further strengthen the family, despite divorce. Which raises the question, which “family” exactly? This volte-face is also telling us that the closet progressives in the PN have been encouraged by Franco Debono and are coming out from within its enclaves. Despite some attempts to undermine Debono in the media, it seems that his party is having to acknowledge his input and influence. It will be seeking constitutional reform for financial autonomy to Parliament and other institutions, including the Ombudsman, the Auditor General, the Public Accounts Committee and the Permanent Commission Against Corruption. Hopefully, financial autonomy will result in complete autonomy. Now that the PN has laid its ‘new’ cards on the table, it will be interesting to see how the Labour Party (PL) will react and try to match it by tackling radical changes in its party. Best practice An eight-month investigation by the Auditor General into the way ministers gave themselves a substantial and secretive pay rise in 2008 has concluded that although no evidence of illegal misappropriation of public funds was found, the implementation of the Cabinet decision was “incorrect and a good example of bad practice”. It seems that an attempt was made to make the pay increases unnoticeable in the Budget votes. Documenting and charting procedures and practices is a complicated and time-consuming process often skipped by companies and institutions and is termed as “bad practice”. When it comes to how government spends public money it is crucial that best practice is adopted. Otherwise, the government puts itself in the position of trying to pull wool over the public’s eye. Transparency Have you noticed that when you click on “About us” on some websites you are not told who “us” are? I have come across this several times recently when trying to find out who Board members are, or whoever is running a company or institution. Yet, we are led to believe that transparency is the order of the day. This is not just about people not wanting to let us know who they are and what they are up to. At the beginning of this column, I mentioned “Mercaptan”. An inquiry board was set up by Finance Minister Tonio Fenech at the end of September to investigate allegations that Enemalta illegally disposed of the chemical by burning it in an open field in 2009. It “was to deliver results at the earliest possible,” although no deadline was established. On Friday, Minister Fenech said the investigation is at an advanced stage but its times frames were not determined. No rush. Enemalta is alleged to have instructed contractors to dispose of 10 barrels containing 450 gallons of the chemical by burning it in a field on the outskirts of Rabat. I had read that the Malta Environment and Planning Authority had confirmed it did not authorise any burning of hazardous chemicals in an open field and launched a separate investigation into the matter. I don’t know whether that inquiry has reached a verdict. This saga raises many questions on transparency and safety when it comes to the disposal of dangerous chemicals. Since we are encouraging more pharmaceutical companies to invest and grow here, we should really be establishing some ground rules and best practice on chemical waste, not to mention monitoring and enforcement. Lastly, and this has nothing to do with my heading, but I was just so incensed that Minister Fenech had the gall to invite the public to participate in the City Gate project funding. The €80m project includes the demolition of city gate, the rebuilding of city gate bridge, the building of a new parliament building and the conversion of the old theatre ruins into an open air theatre. Leaving aside my personal anger at not the demolition of the gate but the ensuing gap. But, hang on a minute, did I read “rebuilding of the bridge”? We need clarification here. Anyway, the public at large has directed harsh criticism at the new parliament building and the open-air theatre. Yet, now it is being invited to help pay for it. Article published in the Malta Independent on Sunday  20 November 2011

Read More

Politics can be fun, if also worrying

Article published in the Malta Independent on Sunday on 06 November 2011 Were we really waiting with bated breath to see the outcome on the debate in Parliament on Friday evening? I would have thought the outcome was predictable. Excepting for Franco Debono, the rest of the PN MPs would obey their Whip and the Speaker was certainly not going to go against his party by casting his crucial vote in favour of the LP motion asking for Austin Gatt’s resignation. However, there is no doubt that there were some anxieties harboured by Gatt’s hangers on. There are still a few loose components in the PN machine and although they stuck by their party last night, things are not running smoothly, hence the Prime Minister’s request for a motion for a vote of confidence in his government. The protest on the public transport flop would also have left its mark. Dr Gonzi needs to rein in his disgruntled MPs and a vote of confidence will mean that they will have to make a decision on whether they want to stay in his party and toe the line, or not. Not an easy decision to make. They obviously have political ambitions and crossing the floor is no guarantee that their objectives will be reached. Basically, they have nowhere to go. By yesterday morning, Dr Gonzi had still not decided on whether Franco Debono, who seems to be the only one as ballsy as Austin Gatt in the PN, will be asked to relinquish his post of Parliamentary Assistant at the Office of the Prime Minister. Dr Debono has said that he will favour the vote of confidence in his party’s government. He managed to get a 50-minute allocation for his speech instead of five in yesterday’s debate, which was a wise decision. We had to be shown that we at least have some democracy left. His main point was that Minister Gatt should shoulder his responsibility for the public transport fiasco. The Prime Minister had fielded that point earlier by issuing a statement saying that the buck stopped with him and that the whole Cabinet was responsible for the reform. Maybe, but the Prime Minister and the Cabinet were not responsible for the implementation and that is the crux of the matter. The reform took three years of planning, yet no one seemed to realise that the buses we would get were too cumbersome for our roads. I was driving behind three of them in Rudolph Street next to the Imperial Hotel, in Sliema, the other day and hoping an ambulance, or any other emergency service, would not need access. But I digress and anyway commuters are more concerned with the bad service then the size of the buses. Of course we needed the reform and yes we have got rid of the awful emissions, shabby buses and some really rude and aggressive drivers. But the alternative has proved a disaster in the very late arrivals, overlong journeys and complicated routes not to mention the ticketing letdown. Gatt now claims it is all Arriva’s fault, (even after that company’s CEO issued a statement earlier praising the minister) and has not accepted the resignations of the Transport Malta’s chairman and CEO. What a farce. An important point in Dr Debono’s speech ending, directed at the Prime Minister, was not related to Minister Gatt, well not directly, or to the public transport reform, but to our Public Broadcasting Service. He might not have used the right analogy by comparing it to the 1980s. But he does have a point; our national TV station is seen as anything but national. A lot was said about democracy at the commemoration of the 90th anniversary of the first sitting of the legislative assembly on Wednesday. However, despite all the speeches for strengthening democracy, I am sure I am not the only one to be anything but convinced that some of the parliamentarians mean it. The Speaker, Michael Frendo, proposed the reactivation of the select committee on the strengthening of democracy, which the Prime Minister said he had proposed to be set up three years ago. “The Select Committee was, and remained, the best forum for strengthening democracy,” he maintained. He said that although there had been unanimous approval in the House, the Opposition withdrew from this committee 18 months ago. Well, as far as I remember, the reason the Opposition withdrew was because it felt that democracy was not being upheld in the way the Public Accounts Committee was dealing with the Power Station saga. In fact, Joseph Muscat referred to the PAC in his speech: “The rules regulating the Public Accounts Committee should also be amended so that if a minister, responsible for a particular entity, presided over such committee would give up his place during such hearing.” The Power Station PAC debate, which has just resumed, had kept being postponed and I believe was last postponed sine die in October last year, after the Opposition had asked for a Speaker’s ruling on the calling of witnesses. The governments’ representatives on the Committee had voted against the calling of witnesses. “Whoever heard of an investigative committee not calling crucial witnesses? One might as well dissolve the PAC the way things are going. Do we need another useless ‘watchdog’? Why do I get the feeling we are being taken for a ride? Our watchdogs, not just the PAC, are either being kept on a leash too tight to function, or are slumbering in complacency. “Minister Austin Gatt, who was the one to object to the calling of witnesses, should not even have been sitting in on this debate, since the power station came under his portfolio at the time the contract was being worked on and finalised. If anything, he should be summoned to give evidence,” I had opined in a column in October 2010. It was certainly undemocratic for a minister involved to be part of an investigative committee of a contract, which a Times editorial (24 April 2010) had referred to as having been handled in an “unacceptably sloppy way” and that there was “sufficient evidence of bad public governance to send shivers down the spine of many hard working taxpayers who have to bear the cost of such laxness”. In my October article and another earlier one, “It will not go away”, of 2 May last year, I had mentioned that although our PAC structure is based on the UK’s Public Accounts Committee, Cabinet ministers in the UK are expressly excluded from sitting on the PAC. Here, Ministers Tonio Fenech and Austin Gatt were on the PAC and would be voting on the outcome. So it looks like a fait accompli, I had opined. The PAC is composed of four members from government and three members from the Opposition including the chairman who does not have a casting vote. How can the PAC effectively scrutinise the workings of government with two Cabinet ministers and two other government MPs on the committee and only three Opposition members, including the chairman who does not have a casting vote? Now the PAC is finally questioning the witnesses Minister Gatt had objected to and he is still a very active participant on the committee. But let’s get back to the Prime Minister’s speech, which rather baffled me because on the one hand he said: “Democratic institutions had to be strengthened to ensure they were responding to the peoples’ needs and dealing with the real priorities.” Yet, on the other he cited “populism, which was again rearing its ugly head,” as “the enemy”. Now maybe the Maltese version of populism has a different meaning to the English one. As far as I know, Populism is a political philosophy, which advocates the rights and interests of ordinary people. But according to the Prime Minister, it apparently means, “irresponsibly offered half truths and simplistic arguments which appealed to everyone’s negative sentiments”.

Read More