Water in the Constitution, Water in human consciousness
On Wednesday, 25th May 2016, the Constitutional Commission of the National Assembly will decide on a proposal to initiate the procedure for amending the Constitution of the Republic of Slovenia with the draft of Constitutional Law – the right to safe drinking water. Civil Initiative ZSS has examined National Assembly suggestions and guidelines for the Constitutional Commission to define.
We wrote that water is a vital part of the environment, a basic commodity and- by its nature a given resource, which is of strategic importance to human life, development, prosperity and the security of our country. It is therefore of crucial importance how our natural resources will be managed and by whom.
Since the 30th January 2016, we have collected a list of more than 55,000 signatures in support of having the inalienable right to water written into the Constitution. We handed this list to the National Assembly on 11th March. Our Citizens initiative therefore has to this date the backing of almost 3 percent of the voting population.
The objective of our actions is to have clearly written into the Constitution that water and water land is a natural public good, over which no-one can acquire ownership rights; that everyone has the right to drinking water; that the water supply of the population cannot be owned by private companies in any legal-formal means, and that the provision of a water supply to the public is not a service which should generate a profit.
An important milestone in the effort to initiate an amendment to the Constitution for the right to drinking water was the establishment of a Constitutional Commission. Their proposition on the right to drinking water has led to an upgrade of the originally proposed text and by publishing their professional opinion has additionally stimulated the debate of interested public and professionals on how to best protect water sources and enshrine in Constitution the right of drinking water (EPA 463-VII).
The Constitutional expert group proposed the following amendment for the right to drinking water:
70th (a) Article
(Right to safe drinking water)
Everyone has the right to drinking water.
Water resources serve primarily as the sustainable supply of drinking water and water for households. These water resources should not be treated as a commodity.
Drinking water supplied to the public and to households is provided by the state through a non-profit public service, water resources used for this purpose are used by the state or directly by pursuit of self-governing local communities.
From the explanation of the proposed text from March 2014 and April 2015, together with the explanations of the expert group on the right to drinking water, it is clear that water, as a shared resource of humankind and a public good, should be written into the Constitution of Republic Slovenia. Drinking water is a fundamental and universal human right and a water supply to the population cannot be privatized. Furthermore, the water supply to the population has absolute priority over the use of water for other purposes and cannot generate profits or share any profit; water supply to the population cannot be delivered by private companies, so granting concessions is not possible. Drinking water supply should not fall under any single European market, irrespective of the eventual pressure from the European Commission to open water supply market in the EU, as was attempted in a change to the directive on concessions from the year 2012. This wording explicitly protects drinking water against any decision by the European Commission.
Without color, Without taste, Without owner!
An important milestone in the effort to put the right to drinking water into the Constitution is the establishment of a Constitutional Commission, which is the expert group on the right to drinking water. This group has upgraded its originally proposed text and provided additional professional opinion regarding starting procedures for amending the right to drinking water in the Constitution (EPA 463-VII).This has further stimulated the debate of the professionals and interested members of the public on how best to protect water resources and drinking water supply at the constitutional level.
Our suggestions and questions addressed to the Constitutional Commission of the National Assembly:
Within four months of the civil initiative, our various actions have helped to awaken the interest and concern of the general public, professionals and the media, and have opened up the discussion of issues and proposal’s as to how the right to a safe drinking water should be written into the Constitution of the Republic of Slovenia. In addition we have raised awareness regarding an amendment to Article 70 (a), which is proposed by the Constitutional Commission’s expert group on the right to safe drinking water.
The question remains as to whether the last paragraph of proposed Article 70 (a)forms a sufficiently clearly defined intention that supplying water to the population cannot be delivered by private companies, nor it is possible to carry out any public-private partnership for water supply. The reason for potential concern is the fact that the phrase »non-profit public service« is not sufficiently well defined. This dilemma should be solved as part of the process of amending the Constitution, as well as defining “non-profit public service” in the Constitutional Law.
Moreover, at the this stage of discussion it is necessary to address the question of how the proposed last paragraph of Article 70 (a) impacts on so called »village water supply« or self-supply of the population with its own water resources. In the reasoning of the constitutional professionals group it is noted that the constitutional amendment does not affect the subsistence of self-water supply or village water supply. Therefore, in the civil initiatives we suggest that the effect on so called “subsistence of the village water supply »should be more clearly argued and an explanation given of why the amendment should not affect so called village water supply.
On a general level the Constitution protects water as a public good, even if the water itself is not directly mentioned. The Constitution, also guarantees the right to a healthy environment, but that, according to the opinion of many professionals, is not a sufficient safeguard against privatization of water resources in Slovenia. In our opinion, the only current protection against the privatization of water resources is Article 15 of the Water Act, which stipulates that all types of water (water above and below ground with all water flows) and water land are a natural public good. Public good should be sustainably managed by the state on behalf of all living beings and on behalf of generations yet to come and is something over which no ownership rights can be acquired. We believe that the right to water can only be asserted if the water resources are defined as a natural public good in the Constitution. It is difficult to assert the right to drinking water if that right is written in the Constitution, and later is the substance of this right changed by withdrawal of the Article 15 of the Water Act. The Article 15 of the Water Act stipulates that inland waters and water land are by nature public good which cannot be privatized. We therefore propose to the Constitutional Commission of the National Assembly of Republic Slovenia that when amending the constitutional law, a new first paragraph of Article 70 should be added which will unequivocally established that all types of waters (surface and ground-waters with all water flows) and water land are by nature public good, as articulated under Article 15 of the Water Act.
In the Citizenship civil initiative, we expect that before the final decision on amending the Constitution is reached, the National Assembly will have identified and addressed all of these issues and proposals. In this event the proposed wording of Article 70a should be corrected.
In conclusion, we suggest that Parliament should, as the part of the second phase of the constitutional review procedure, and whilst forming the text of the Constitutional Law, once again engage in a dialogue with the water and the legal professionals, public authorities covering the area of water, and representatives of civil initiatives. The aim must be that together we can form a clear constitutional declaration which takes into account the above-stated intentions of the proposers and the signatories of the citizen’s initiative, under which can be prepared good implementation law and to promote a broad debate amongst the professionals and representatives of the people, in order to establish unambiguous constitutional definitions, followed by the implementation of good sound laws.
Thanks to Steve Gardner for editing and to Romea for translation.
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