The cost of irreverence | Joe Falzon

I meet Joe Falzon in his university office, the day after ombudsman Joseph Said Pullicino appointed architect David Pace as Malta's Planning and Environment Commissioner, a post which now replaces that of Audit Officer, a post filled by Falzon over the past eight years.

Despite his disappointment at not being given a clear timetable for his exit, I do not detect any signs of bitterness or resentment in the soft spoken but irreverent Falzon. In fact, what strikes me most about Falzon is how he manages to balance his gentle disposition and deep respect for institutions with irreverence towards power, in a country where people are expected to please the powers that be.

Typical to his character, he has accepted MEPA's Chief Executive Ian Stafrace's proposal of remaining temporarily in office to ensure a smooth transition.

"I am doing this out of respect not just to the people - whose complaints am still investigating - but also out of respect towards the Malta Environment and Planning Authority, an institution in which I firmly believe in, and support."

When I talked with Falzon last week on the phone after he was informed by the ombudsman that a Planning and Environment Commissioner was to be appointed to take over his role as planning watchdog, he expressed disappointment. He even told me that he "was treated like dirt".

Why was he so disappointed when it was made clear to him following the expiry of his second term in office in 2010 that he would only remain in office until the new law creating the new post comes in place?

"I was aware that this was going to happen... in fact, I was constantly looking into when exactly it was going to happen..."

What irked Falzon was not the appointment of a new officer but the lack of any clear timeframe to allow for a seamless handover.

"I was tired of being left hanging..."

For the past two years Falzon, did not even have a contract to the extent that six weeks ago he had asked MEPA's chief executive to make some form of contract for a predetermined timeframe.

"All I was being told during the past two years was to wait until we decide what we are going to do."

He would have accepted this situation if it lasted a few months but he describes leaving him hanging for two years as "ridiculous".

The decent alternative to this would have been a clear three month transition before handing responsibility to the new official.

What irked Falzon mostly was the way the fait accompli was communicated to him through the ombudsman and not by MEPA or government.

"MEPA is saying that it did not know. Now even the Minister says he did not know... this is surreal. I cannot understand why the Ombudsman told me of this decision before informing MEPA and government."

But did Falzon expect to be appointed in the new role of Environment and Planning Commissioner after serving as MEPA audit officer for eight years?

Falzon makes it clear that he was never asked to consider such a possibility.

"The job was never offered to me by anyone."

He disputes ombudsman Said Pullicino's claim that he had indicated that he was not interested in the post.

"I do not remember when I said so... it may be the case that I might have expressed frustration with this job... it happens in any job but I have to say that since the 2008 election things have improved a lot when it comes to my relationship with the authority."

Falzon notes that his relationship with MEPA improved since the appointment of Ian Stafrace as the authority's Chief Executive.

"We meet in a regular way. Sometimes we disagree but most of the time we agree and reach a solution to complaints without even the need of completing a report."

Neither did Falzon have high expectations that he would have ever been offered the post.

"So I never really gave much consideration to this possibility..."

One difficulty he would have had in accepting such a post was that of having to give up his lecturing post at university, a role that Falzon is not sure he was willing to relinquish.

But this was all hypothetical for Falzon, who was never approached to consider this option.

But were eight years in office enough. Does it not make sense to bring in some new blood?

"I think this is a very valid argument. It is good that people change from time to time. If they simply told me that I have done my time, I would have probably agreed in the same way as I accepted stepping down from Dean of the Faculty of Architecture after eight years. On that occasion I myself had told the rector that I would have preferred if someone new takes that position."

When asked for his verdict on MEPA reform, Falzon insists that MEPA's problem did not lie with the law as such.

"Even the original law as it stood would have functioned if we wanted it to function."

The problem, for Falzon, was in fact a political one.

"Malta is a small country. Our politicians know that their future depends on each and every vote. Therefore when someone has power and becomes a minister for example, his priority becomes that of advancing his position."

Judging by his experience as Chairman of MEPA's Development Control Commission for six years and eight years as Audit officer, MEPA's main problem is "political interference".

Falzon recognizes that the law gives an important role to the minister.

"Someone has to carry political responsibility but his role is specifically defined by the law. His duty is to ensure that MEPA respects the law."

According to Falzon, public authorities like MEPA are needed because while politicians tend to have a short-term view of things, someone has to look at the long-term interests of the country.

The problem for politicians is that the setting up of such authorities undermines their power to dispense favors.

"Is there a minister who does not have an office in his constituency to hear people?" Falzon recognises that there is a positive element in politicians having a direct link with voters.   

"But in reality, some people go there to ask for favors."

Falzon reveals that when he was chairman of the Development Control Commission, he made it clear that he would not accept any interventions by ministers. He even went as far as reporting a minister for his presence in a board meeting with regards to an application by a government entity in Valletta. On this application, there were clear negative recommendations by the Valletta rehabilitation committee, the Museum Department and MEPA's own Heritage Advisory Committee.

"The Minister came to the meeting with an entourage of other officials... I think the entire ministry was there. I felt that this constituted unwarranted pressure on members of the DCC, some of which were government employees. I reported this case and since than, I never received a single phone call from politicians."

What is important, according to Falzon, is to show politicians the red line which they should never cross.

"If you stand up to politicians, they take notice and back off."

This is the advice he gives to his successor in the role of planning ombudsman, David Pace.

"The law gives you the power not to take instructions from anyone and he should not take instructions from anyone. Act according to your beliefs... you may well commit mistakes as I have done and always be ready to admit. The greatest mistake one can commit in such a role is to listen to those who have a vested political or financial interest. You have to be ready to offend some people."

He describes the choice of David Pace as Environment and Planning Commissioner as a positive one.

"I worked with him in the DCC board and he brings a lot of value to this position. I have no doubts that he is a good choice."

Falzon also objected to private meetings between ministers and MEPA employees.

"If a meeting with a minister is required, it should always take place in the presence of the MEPA chairman or at least a director to ensure that MEPA staff are accompanied by someone who has stature... some of these employees were scared shitless in these situations."

According to Falzon, this is "common practice", even if, ultimately, former planning minister George Pullicino came to agree with the auditor's position.

"At first, Pullicino didn't like what I was saying but eventually, he came to agree with me... he realised that it is also to his advantage to avoid such situations."

One of the fundamental aspects of the reform was to replace the Development Control Commissions composed of part-time members - largely made up of architects engaged in private practice who were faced with applications presented by past or potential clients - with the Environment Planning Commission composed of full timers who would be operating with no conflict of interest.

Falzon recognises that there has been a substantial improvement.

"It seems that the EPCs are working better than DCCs, in the sense that they are less likely to overturn recommendations by the planning directorate."

He also recognises that the number of complaints against decisions by MEPA have decreased drastically.

In fact Falzon contends that today, there are more problems in the way the operations of the MEPA board composed of government appointees which deals with major projects and large scale applications than in the EPCs.

"In fact, some applicants prefer their case to be heard by the MEPA board because this is composed of people who do not necessarily have the expertise and knowledge of planning regulations. Some board members judge cases according to their own criteria, which are not necessarily planning criteria. In this way, they can set dangerous precedents."

One way forward could be a greater scrutiny of appointees by parliament's select committee. Another solution is to appoint people who are not necessarily experts but have a greater interest in planning issues.

A MaltaToday probe published in March 2008 showed that MEPA's development control commissions considered an amazing total of 430 cases in the last week of the election of 8 March, 2008 - nearly three times the number of cases considered over the same period a year before. In 49 cases, the DCC boards ignored the case officers' negative recommendations, and issued a permit all the same. What guarantees exist to prevent this from happening?

"I hope that the people who have responsibility resist any pressure. The problem is not that permits are issued but the way these are issued. What is of concern is that the most controversial cases were issued in the months and even days preceding the 2008 general election."

Another recurring problem is the lack of enforcement.

Falzon reveals that he has just concluded a report about a wedding reception venue in Gozo in the street between Rabat and Marsalforn, which lacks any planning permit.

MEPA did issue an enforcement order against illegal structures like gazebos but failed to issue an enforcement order against the "change of use" to a wedding venue despite the fact that site is being advertised on the internet.

 "When I checked with those responsible in December they told me that no weddings were taking place at that time... as if people organise weddings in an open-air venue in December..."

Another major shortcoming in MEPA is the poor quality of some of the reports produced by the Directorates on which the boards have to base their decisions.

Five years ago, the Robinson report conducted by foreign experts concluded that 50% of the case officer reports were defective and 17% were completely unacceptable.

"I have not seen much progress in this aspect."

He refers directly to a case officer report on the development of three villas in the archeologically sensitive site at It-Tafal tal-Imdina.

"The report stated that the application increased the size of the build up area from 700 square meters to 900 meters square meters. As soon as I opened the application presented by the applicant I found that the development was to cover 2,600 square meters. It was true that the developer intended to extend the floor area by 900 meters but the new development consisted of two storeys."

Earlier on this week, a MEPA official told a press briefing that the Armier boathouse issue was bigger than MEPA.

Falzon agrees with this statement.

"If you do not have full political and structural support, how can you solve such an issue?" asks Falzon.

For Falzon the Armier shantytown is symptomatic of a political culture which tolerates small abuses which over time are allowed to grow into major ones.

"Instead of clamping on these abuses immediately when it is very easy to do so, we allow things to get out of control."

Falzon also reveals that the Prime Minister has sought his advice on the Armier issue.

"The Prime Minister wished to solve the problem. Unfortunately the  demands of the boathouse owners were excessive. They wanted to build  practically a complete new town. The Prime Minister I presume realised that their proposition was ridiculous and he probably had advice from MEPA that planning policies would not allow  anything like that. He wished to find a solution which would satisfy the  boathouse owners while at the same time protecting the environment of  the area. I do not believe that such a solution exists."

Falzon recalls telling the Prime Minister that the government had three options in this case, namely: "Do nothing and keep postponing (which is politically the safest), go to the other extreme by telling them 'either you demolish or we will demolish' (which would constitute big political risk) or else come to some form compromise."

But Falzon himself does not believe a compromise is possible.

This is because the compromise between the squatters and the government was that of allowing the development of a town which is so huge in an area where no such development can ever be allowed.

"The end result of this is a stalemate."

Falzon is skeptical on whether any solution to this quandary can ever be found.

"Too many promises have been made and these boathouses are still being sold on the market, even if I can't understand how these people can deal in property which does not even belong to them as it lies on public land."

Reacting to statements referring to the "removal" of Falzon from the post of audit officer, the government rebutted that it trusted Falzon to the extent that it was the same government, which appointed Falzon in 2004, reconfirmed him in 2007 and kept him in his post for another two years. But did Falzon himself feel trusted?

"On an individual and personal level, I always felt a degree of trust. It was the fact that my agenda did not coincide with their political agenda, which resulted in clashes. Their political agenda was to appear nice in the press. Therefore I found myself undermining this agenda and creating embarrassment."

Falzon was certainly trusted enough to be asked by the Prime Minister to prepare a report on the development of a disco in Mistra on land belonging to Jeffrey Pullicino Orlando.

Today Falzon refers to this episode as a "political game".

On that occasion, Falzon's concern was not to get caught up in the middle of political football game between the two parties. To avoid this, Falzon made it a point to complete the report before the election and to send it to MEPA for its comments, fully knowing that usually it takes weeks for the Authority to reply to such reports. In this way, he threw back the ball was in the government's court and that nobody could blame him for not preparing the report before Election Day.

"I realised that they threw the ball in my court and I decided to threw it back in their court... Therefore I stopped whatever I was doing and dedicated myself to the report - which took two days to complete - and I was in a position to send it to the MEPA chairman on Wednesday at 5pm. If they wanted the report published before the election, they had a full day to send their comments. If they wanted the report after the election,  they would have taken their time."

In fact, the MEPA chairman's reply came after the general election, even if he had no comments to make on the report. The rest is history.