Are equality bills 96 and 97 too half-baked to be settled before the election? Can these bills promising equality be rescued from the objections that have been raised by minorities, professions, schools, religious groups, rule-of-law organisations and law and constitutional experts?
The equality bills have made people dare to dream of a Maltese society freed from discrimination on the basis of whether you are straight or gay, LP, NP or none, with or without property, Catholic, Muslim, agnostic or atheist, Maltese or Malian, female or male, etc.
Like many equality laws elsewhere, it has made things easier for the accuser by taking the accused to be guilty until proven innocent. Three parliamentary committee meetings during 2020, supported by bilateral meetings, have embarked on a public consultation with the stakeholders.
During such meetings, LGBT+ proponents have been probably the most vociferous minority, clamouring for effective protection from hate speech, harassment and discrimination.
There were strong representations from doctors and pharmacists, worried by a law that is so vague in defining discrimination that it empowers low-level officials to legally oblige them to do actions against their conscience.
Equally worried were Catholic and other associations and schools that have no guarantee that the law will not force them to teach what is against their belief and their conscience. However, they were very emphatic in assuring LGBT+ and other minorities that their ethos is to welcome them in their inclusive communities and through their teaching.
Headway has been made on points such as the removal of the supremacy clause. This clause had threatened to strike down any law whatever, except the constitution, if the board saw discrimination in it, on its own very vague criteria. There is promise of agreement on other important points in bill 96, too.
However, the election is cropping up when discussion on bill 97 has not even started! We know that such hurried fixing of laws can be an occasion for shoddy clauses, regretted mistakes and unbalanced or omitted consultation.
Bill 97 describes the equality institution, the watchdog that will enforce the equality legislation. Will it be a watchdog that guarantees freedom and safety to the people it protects or will it be like Cerberus of mythology, making sure that the dead remain dead and deprived of life? Will the bill be the Trojan horse that uses the attraction of its just aspirations to sneak in hidden agendas the moment we are looking the other way?
If your school is found to be guilty of discrimination, you can be fined up to €20,000 or €500 a day, plus unlimited damages- Charles Pace
The dog Cerberus is said to have had several heads. This watchdog, this planned national institution to protect human rights, has several heads too: the minister who issues legal notices, the commission under the commissioner that sets and recommends policy and, last but not least, the board, the tribunal that can issue sentences, fines and payment of damages.
Given the utter vagueness of the law in defining discrimination and harassment, which of the above heads will fill the blanks?
Though legal notices can specify practical procedures to implement laws, one doubts whether a legal notice can fill the blanks of a vague law. That should only be the prerogative of a senior court, though parliament is the culprit if it creates a law that is so unpredictable that you know what it means only when the sentence lands on you like a ton of bricks.
But it looks as if, with the law as it is, only the board members act as judges, to define as illegal and punishable what was legal till yesterday. Giving such vast power to the board is truly the tail wagging the dog of the equality institutions and of the country.
Bill 97 stipulates that board members are chosen by just one person: the prime minister. Even though, due to the vagueness of the law, they have effective legislation powers similar to the American Supreme Court, there are none of the safeguards for a balanced, shared and accountable selection as has been introduced for the choice of our judges. Nor the safeguards set by the Paris Principles.
The Paris Principles require that members of such human rights institutions represent a broad spectrum of civil society and of the values and beliefs, including religious and philosophical, as well as relevant expertise, of the society concerned. No such assurances are given about the board.
If your association or school is found to be guilty of discrimination by this board, you can be fined up to €20,000 or €500 a day, plus unlimited damages. Enough to force any association or school into bankruptcy and make it cease to exist and to deprive its beneficiaries and the Maltese community of its good work.
It is with this in mind that a serious and careful consultation is needed, especially about bill 97, if it is intended to go to parliament, with the aware and energetic participation of those affected.