It is regrettable how, in western societies, in respect of women, homosexuals, bisexuals, intersexuals and trans, inequality and gender-based discrimination persisted for so long. The negative situation over recent years has improved although one cannot state that all problems are solved.
The merit, for a recognition of the unfair treatment and the development of a willingness to rectify the injustices, is owed to the struggles of the various pressure groups that the persons victimised managed to set up, starting with the suffragettes up to contemporary women’s and gay lobbies.
In Malta, a commitment to give a further push to equality and non-discrimination manifested itself in 2016 with two proposed draft bills, an ‘Equality Act’ and a ‘Human Rights and Equality Commission Act’. These bills aimed for a legal framework exclusively focused on the issues, with a dedicated tribunal. Since then, many affected entities, such as employers’ associations, various civil society groups, the Church, religious and other schools, have reacted to these proposals.
There is no refusal of the overall concepts underpinning these proposals but alarm has been raised in respect of particular clauses and definitions as well as the slant and partiality prevalent in the bills. It is being maintained that the unacceptable slant and objectionable clauses and definitions imply an introduction of injustices, restriction of freedoms, negation of current rights and due process of law to citizens, employers, the Church and education establishments.
Following pressure from constituted bodies, the Malta Employers’ Association, in particular, and the Venice Commission, the original drastic 2016 drafts have seen some amendmentsbut, still featuring objectionable passages, they have now reached parliamentary committee scrutiny stage for an eventual parliament vote before the end of the year.
There is now apprehension that these still legally very defective, unjust and partial proposals are on the way to parliamentary approval. Many are asking whether there is still time to intervene and identify a way how to render these bills less threatening, less contentious and more equitable.
In 2016, there was shock and disbelief as the bills proposed to have an equality commissioner investigate and refer a citizen offender to a board for prosecution. This citizen would have had to face an adjudicating board (a tribunal with power to imprison), which board was to be chaired by the same equality commissioner – one and the same person: investigator, prosecutor and judge!
The bills include ‘obligations to promote’ subjective views- Arthur Muscat
The unashamed mediocrity and harshness of this particular proposal led many to believe that the then minister, Helena Dalli, had passed on the bills’ drafting task to inept legal people or to people of the LGBTIQ lobby who themselves were probably past victims of equality or discrimination injustices.
It appeared that, rather than starting off with a reasonable piece of proposed legislation, which could have given rise to a balanced debate, the situation unavoidably ended up with a set of illegal and aggressive rules. It looks like the animating spirit of the drafters was one of anger and retribution.
Currently, the bills, in respect of discrimination offences, prominently feature the controversial provision of considering an accused citizen guilty until and unless s/he can prove her/his innocence. The bills are loaded with provisions that will enable an arbitrary imposition of gender quotas within boards of business companies and other institutions.
In respect of our ‘autonomous’ University, as well as schools and colleges, the commission will have the right to participate in the formulation of equality and discrimination programmes, including the execution of same. Being prosecuted, an accused may find herself/himself simultaneously facing the accuser, the commission and any number of civil groups that deem they have an interest in the case.
The bills include “obligations to promote” subjective views and concepts on the part of employers and education establishments. Uncalled for, an employer will have the obligation to bring the provisions of the Equality Act to the attention of her/his employees. As an employer, the government’s public sector is being loaded with outrageous obligations and tasks to promote many dubious LGBTIQ causes.
To achieve quick fixes, the concepts of positive discrimination and gender quotas are being given absolute legitimacy, leading to serious infringements of the equality and meritocratic rights of female and male citizens. Instances of ‘double jeopardy’, that is, an accused ending up judged and punished twice for the same offence, and conflicts of jurisdiction between tribunals are not ruled out.
The bills betray a grab for power and control, with a pronounced persecutory leaning against whoever will be deemed not conforming. They feature passages with hidden agendas, like a bewildering ominous provision declaring a supremacy of these bills over any other law except the Constitution!
A must read is the article ‘A right diminished’ by Tonio Borg, which appeared in this newspaper on October 18. The author clearly highlights the peril of a request to change the Constitution to allow “administrative tribunals”, rather than only established courts of law, to impose exorbitant, criminal in nature, administrative penalties.
Do we require more tribunals? Why are we setting up an additional distinct equality and discrimination tribunal manned by a committee of four lawyers operating as ‘quasi’ judges? Do we need this dilution of the jurisdiction of our established courts? How about dedicating more resources to our courts so they numerically will be better manned? This will allow our professional magistrates and judges to better guarantee fair procedures and timely decisions for all citizens on all issues.
Human rights, equality and discrimination are important matters but these vitiated bills are provoking resentment and will not help the cause. Short of being completely discarded, a thorough rethinking and toning down of these bills is called for.
Malta must have the highest number of lawyers per capita in the world; is it too much to expect our legal community, through its chamber, to intervene in the debate or perhaps set up a committee that will give a due, objective assessment of these proposals ?
This is a plea from an anxious non-legal layman and as the chamber, unlike the PN and PL, is not into popularity politics it need not fear vote repercussions for its efforts.