The Malta Independent on Sunday
Lands Minister has no decisional powers in public domain declarations, judicial protest filed
Legal paperwork filed in court this past week in a judicial protest against the Executive Chairman and the Executive Council of the Planning Authority (PA) and seen by this newspaper, challenges the involvement of the Minister responsible for Lands in any decision making in the public domain declaration process currently underway.
The Lands Minister, who is also responsible for the PA and other matters, is Ian Borg, but he is not a party in the judicial protest.
The paperwork was filed by Noel Ciantar, a private citizen who in February 2017 submitted his own request to the Executive Council for a public domain declaration process over five properties and territories.
Since then, Ciantar has not had a reply from the Executive Council about his request, and the sites proposed by him were not included in the recent public consultation process which was launched on 3 July and closed on 11 August and which covered 24 sites proposed by two NGOs and one Member of Parliament.
On 12 July, Ciantar filed a complaint with the Office of the Ombudsman, alleging unfair and discriminatory treatment by the Executive Council. An investigation of the complaint was immediately initiated by that Office.
In one of the replies to the Office of the Ombudsman about the complaint, consisting of an email dated 31st July, and which is filed with the judicial protest, Johann Buttigieg, Executive Chairman of the PA stated : “The decision of the Council only comes into effect when the Minister endorses the report as happens in any PC (public consultation). Therefore any decision on policy issue becomes effective only when the Minister endorses the report. In this case, the report has not yet been presented to the Minister. What if the Minister does not agree with the interpretation given by the council? Shall we retract back ( sic) our correspondence? In our opinion the council at this stage can only collate the information. After which, we will give an opinion on all submission ( sic) to the Minister. The Minister will have one month to review and corrections may be made before presenting the report to the Standing committee where all submissions will be discussed and the public are invited to make further oral submissions to the Committee. Following which the Minister will then decide on which sites should become public domain or otherwise.”
In another reply dated 2nd August, the Executive Chairman stated “The Minister will have a comprehensive list of all submissions and the reasons why these were not included in this round of public consultation or hwy ( sic) they are included together with the recommendation of the Executive council ( sic) on each and every one of them... As we have already stated we can only provide a position once this is endorsed by the Minister...”
Speaking to this newspaper, Ciantar argued that up to the time of the above replies, he had been under the impression that his proposed sites had been rejected because the Executive Council was sticking to a literal application of the law, expressed in the public announcement made by the PA at the launch of the public consultation, that: “According to the legal provisions, proposals can only be made by the Minister responsible for Lands, Members of Parliament or NGOs.”
Ciantar disagreed with such an interpretation, but to add insult to injury, it now appeared to him that while the Executive Council was sticking to the letter of the law in excluding his request because it came from a private citizen and not from the above sources, at the same time, the Executive Council was going to the other extreme of reinventing the law by granting powers to the Lands Minister.
Faced with the Executive Chairman’s replies to the Ombudsman and their inconsistency with the public announcement of the PA, as well as the prospect that both his site proposals to the Executive Council, and sites proposed for public domain declaration from any other source, will be subjected to the blessings of the Lands Minister, Ciantar sought legal protection.
He argued with this newspaper that the public domain law, which is encoded as an amendment to the Civil Code, does not grant any discretionary or decision-making powers whatsoever to the Lands Minister, who also happens to be the Minister responsible for the PA, with respect to sites proposed to be declared in the public domain. Unlike other parts of the Civil Code, which grant certain powers to various Ministers for the functioning of the Code, the public domain provisions give no such powers to the Lands Minister.
Therefore, any such intervention by the Lands Minister could politicise the public domain process and would introduce a constriction that could undermine the roles of the public, the Executive Council and Parliament in the process. The law is intended to preserve the things in the public domain by creating obligations on the government and other owners of those things. Any interference by a Minister in the public declaration process would short-circuit the declared aim of the law, because the Minister could be tempted to decide against the inclusion of lands or properties in the public domain for political motives. Worse still, any ability of a Minister to take decisions and veto sites from public domain would render the public consultation useless and a waste of time.
The only right given to the Lands Minister by the law relative to the declaration process is to propose sites, but such proposals would be treated alongside those from other sources. In practice, the Lands Minister can also participate in the public consultation process, but then it would be his views that would be subject to the discretion of the Executive Council, rather than the other way round.
As a matter of fact, the public domain law puts the public domain declaration process firmly in the hands of Parliament, as the legislative arm of the State, by making the declarations subject to a Parliamentary resolution. With this power secured, Parliament has laid out in the law a clear process with specific responsibilities assigned to the Executive Council of the PA, the Lands Minister and the Standing Committee on Environment and Planning. In brief, the process works as follows.
Parliament has appointed the Executive Council of the PA as the agent to receive site proposals, and to carry out a public consultation about such sites. Since the public domain revolves around the protection of things, mostly land and property, because of their nature, the Executive Council of the PA is an automatic candidate to conduct this initial screening process and to collect public feedback. The Executive Council is an autonomous legal body established under a specific law, and operates without any ministerial involvement. For instance, when issuing permits or enforcement notices, the PA is not expected to resort to the discretion of any Minister.
Following the public consultation, the Executive Council is to complete a report in which it will “indicate” those sites “that it would deem appropriate to be declared as public domain”.
The report is to be presented to the Lands Minister, who must table it in Parliament by 15th September of every year or as soon as possible but not later than one month from its receipt, whichever is the earlier. In a sense, the Minister’s role with respect to the report is that of a courier, with one annual delivery to a fixed address.
The law then sets out the process in more fine detail. The Speaker of the House will refer the report to the Standing Committee on Environment and Development Planning for its consideration and comments. After this process, the Standing Committee will recommend the sites to be declared as public domain, and the Lands Minister shall then present Public Domain Resolutions about those sites to the House for its consideration. Parliament shall then approve or reject those resolutions.
In his judicial protest, Ciantar is challenging the Executive Council as not being knowledgeable about the legal provisions of the public domain law, while contending that any involvement by the Lands Minister through endorsements or decisions in the process would be legally mistaken and would amount to abuse of power because it would violate both the legal provisions and the spirit of the law which has stipulated an open process with the participation of the public and subject to public scrutiny.
The judicial protest seeks to prohibit the Executive Chairman and the Executive Council from proceeding with the involvement of the Lands Minister in decisionmaking in the process.
Ciantar also alleges that the inaction by the Executive Council about his public domain proposals of February 2017 is illegal and abusive and violates his constitutional rights, and has asked the Executive Council to conduct a public consultation about his proposals.