Editorial: Wilful omission on a protocol

When Malta ratified Protocol No. 12 of the European Convention on Human Rights, it was certainly a meaningful commitment, at least on the face of it. Ratification meant the State was formally agreeing that no public authority should be allowed to discriminate against any person in the enjoyment of any right enshrined in law.

And yet, a decade on, that commitment remains exactly what it was the day it was signed: unfulfilled, and never formally introduced into the relevant Maltese legislation where it would have finally had its effect in the law courts.

The direct effect has been fortuitous for government authorities challenged by citizens on the grounds of discrimination: effectively, the absence of this law is their greatest defence.

Under Article 14 of the ECHR, discrimination of citizens is only prohibited when it relates to another specific Convention right – for example your right to a fair trial, say, or your right to property. Protocol No. 12 is an anti-discrimination treaty unto itself, added to the convention in 2000.

And unlike Article 14, Protocol No. 12 is not limited to enjoying only those rights provided by the convention. What it means is that the convention, under the additional scope of the protocol, protects persons subjected to discrimination in the enjoyment of any right conferred by national law.

This is especially important in cases involving discrimination by public authorities in the exercise of discretionary powers, such as grants or subsidies, or from other acts or omissions by public authorities, for instance, the conduct of law enforcement officials in quelling a demonstration.

In essence, Protocol No. 12 is a free-standing equality clause. If a government department treats you differently because of who you are, Protocol No. 12 says that is wrong on its own terms – regardless of whether another convention right is also in play.

While Malta is a ratifier of this protocol, it has however not yet written it into domestic law. The omission effectively ties the judiciary’s hands because a Maltese citizen who believes a public authority has discriminated against them, cannot invoke it before a Maltese judge. And yet, Malta is bound by Protocol No. 12 under international law… a structural absurdity if there was any.

The State Advocate can cynically challenge anti-discrimination rulings against the State and its public authorities on grounds that Protocol 12 does not form part of Maltese law.

Aggrieved citizens are therefore expected to incur the Byzantine option of losing their complaint in the Maltese courts, to finally take the matter to the European Court of Human Rights in Strasbourg: a process that is lengthy, procedurally complex, and expensive. This is hardly the role of the European Court, to be employed as a substitute to the Maltese courts, simply because of the Maltese legislator’s unwillingness to amend the law back home.

Parliament has so far not moved in the face of the Ombudsman’s complaint on this legal impasse, a silence that spells out the lack of political will for this government to take its international human rights obligations seriously. Ratification of human rights conventions are a starting gun, but the legal work to bring domestic law into alignment with the state’s international commitments, is what follows. And Malta has not done that work.

After 10 years, the failure is no longer an oversight. It appears to be a deliberate choice, where citizens who face discrimination by public authorities are paying the price for it – and perhaps, those singled out for discrimination by sheer design are destined to face a court process that is unable to give them justice in the first place.