Some issues relating to freedom from discrimination

One of the most frequently recurring themes underlying the great historical struggles for social justice has been the demand for equality. For this reason, besides others, the topic of discrimination must not only be considered in the light of a region, such as the European one, but a more global approach would do more justice with the principle and its contemporary importance.

Even Aristotle believed in a form of distributive or proportional justice where equal things should be given to equal persons and unequal things to unequal persons.

Similarly, there exists a wide measure of agreement among philosophers that there is a presumption in favour of mathematical equality, namely, that people should be treated in a substantially uniform way, unless there are intelligible or relevant reasons for treating them differently.

One of the most frequent claims in our country, especially in the context of political appointments, transfers and promotions at work, relates to discrimination. To this extent, it may be argued that discrimination, in one of its many forms, is quite commonly practised in Malta, not only against ordinary citizens but even against certain groups within a society, such as, for example, lawyers.

Before the National Employment Authority, for instance, a first come first served basis for hearing cases is adopted, but Members of Parliament have the right to have their cases heard before other lawyers, their colleagues, as soon as they arrive, no matter how long the non-politician lawyer has been waiting.

However, on a global scale, inequality exists in an extreme form in societies that are hierarchically structured on gradations of ranks and privileges, such as the feudal system, the Indian caste system, and the former South African system of apartheid.

Discrimination may be roughly termed as the according of some differential treatment to persons or bodies in the same position. It is prohibited by a multitude of national and international laws, including the 1776 American Declaration of Independence, which states that "it is self-evident... that all men are created equal", and in Article 7 of the Treaty of Rome of 1957 (The EU Treaty). Today the EU has very stringent regulations and laws relating to discrimination.

It is apparent that a prime difficulty with the term "equality" is that it is used in both a narrow and a broad sense. Firstly, it can be used in the sense of a mathematical, exact, strict, or numerical equality, which includes the ideas of identity or sameness.

Alternatively, it is often used to mean true, effective, real, genuine or normative equality. This second formulation envisages a standard to be achieved and allows for special measures or differences in treatment designed to bring persons up to a certain level.

Thus, for example, to give old-age pensioners the same amount of money is an example of numerical or formal equality of treatment. To give them different amounts to bring their individual incomes up to a specified figure would be an application of the principle of real or genuine (normative) equality.

Therefore, the latter notion involves the idea of compensatory treatment, or distributive justice. Certain under-privileged persons or groups may be given a boost to bring them up to the same basic level as others, on the analogy of the handicap system employed in many sports.

The principle of non-discrimination is based on the inherent dignity or intrinsic worth of every human being to the equal entitlement of human rights, as enunciated in all international human rights documents.

Despite the fact that this principle of non-discrimination emanated from the anti-slavery convention and minority treaties, it was the United Nations Charter that first prescribed non-discrimination as a norm of international law - respect for human rights and fundamental freedom for all without distinction as to race, sex, language or religion.

Under general international law, the concept of equality includes two complementary notions: the principle mentioned above of non-discrimination; and the principle of protection or special measures designed to achieve positive equality (reverse or benign discrimination).

This basic principle was then developed in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR) together with the International Covenant on Economic, Social and Cultural Rights.

These were further improved with the ratification of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

Non-discrimination has been universally divided into two main categories: racial discrimination and discrimination based on sex. A widely accepted definition of racial discrimination is that found under article 1 of CERD, which lays down that racial discrimination shall mean any distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin, which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise on an equal footing of human rights and fundamental freedom in the politic, economic, social, cultural and any other field of public life.

This definition implies that both negative and positive discrimination could be discriminatory, depending on the intention or result of the discriminatory actions.

The discrimination must take place in any field of public life. Thus, human rights norms do not impinge on discrimination in the private sphere, so long as such measures will not result in a violation of human rights of others, and are not in conflict with the public interest, such as morals, safety, order and health. This is laid down in Article 18 of the ICCPR.

Article 1 of CEDAW, however, extends this prohibition of sexual discrimination to private life, as in marriage, for example. This is because while discrimination against women largely takes place within family life, it usually leads to the denial of equal opportunities in public life.

It is however not so clear-cut when an issue affects solely public life or private life. There are grey areas which might raise certain issues of discrimination; for example, does the prohibition of a particular person to become a member of a club amount to discrimination? Can churches restrict employment to their members only?

Is it only the state that is bound to ensure that discrimination does not ensue from its legislation and activities, or does the state also have a duty to ensure that neither will individuals discriminate against others? The list of grounds for discrimination is generally argued not to be exhaustive.

Discrimination will include, in most cases, any form of behaviour which excludes one particular person/s because of his/her belonging to a particular group or category which does not make a difference under international human rights law.

It is obvious that equality as a principle is accepted universally. However what exactly constitutes equality is subject to cultural differences. International human rights law has accepted this, as it has with other rights, so long as the basic minimum standards are adhered to. This is clear from the European Convention on Human Rights (ECHR's) principle of margin of appreciation to deal with situations of national differences.

The ECHR provides for the principle of non-discrimination under Article 14, which has its counterpart in Article 45 of our Constitution. The principle of non-discrimination under this treaty is not, however, an autonomous right as it is in the ICCPR, for example.

The principle of non-discrimination under the ECHR is applicable only with regard to the protection and promotion of the other rights listed therein. The ECHR has however held that it is still possible to find a violation of discrimination with the necessity of finding it in conjunction with other right/s - Muller v Switzerland 1988 and Belgian Linguistic case 1968.

A similar non-autonomous article on non-discrimination is found under Article 2 of the ICCPR. However, this Covenant also deals with non-discrimination autonomously under Article 26. What international human rights mechanisms exist to enforce this principle of non-discrimination?

Discrimination may be attacked under the First Optional Protocol to the ICCPR, under the Human Rights Committee (HRC). In fact, the HRC has dealt with a large number of discrimination cases.

The same system of individual complaints exists under CERD with the committee established under that treaty. Although these views are not legally enforceable, they have however a very strong political influence.

We have already discussed the implementation mechanism of the ECHR. The Organisation of American States has a similar implementation mechanism under the Inter-American Commission and Court of Human Rights.

When one speaks of equality, one does not mean absolute equality, since this would be impossible. Equality, therefore, does not mean sameness or identical treatment, but rather equal treatment in equal circumstances.

Thus inequality would be justified if it is objective, reasonable and proportionate to the legitimate aim intended. This is the idea of relative equality. This principle was developed by Judge Tanaka in the South West Africa 1966 case before the International Court of Justice. It was there held that the principle of equality does not mean absolute equality, but recognises relative equality, namely different treatment proportionate to concrete individual circumstances.

Different treatment must not be given arbitrarily; it requires reasonableness or must be in conformity with justice. In these cases, differentiation is aimed at the protection of those concerned, and it is not detrimental and therefore not against their will.

The ECtHR in the Belgian Linguistic Case has set criteria for fair differentiation: existence of objective or reasonable justification, assessed in relation to the aim and effects of the measure, and reasonable relationship of proportionality between the means and the aim sought.

This view has also been confirmed by the HRC. Thus, for example, the ICCPR prohibits the death penalty for persons under 18 years of age, pregnant women and the insane.

The Inter-American Court has gone further and held that inequalities in the legal treatment can even be instrumental in achieving justice or in protecting those who find themselves in a weak legal position. There should be a reasonable relationship of proportionality between these differences and the aims of the legal rule.

All the above relates mainly to positive discrimination. One must also note that provisions allowing for derogations in time of states of emergency lay down that such measures resulting from such derogations may not be imposed in a discriminatory fashion.

This prohibition is reinforced by the Geneva Conventions and their protocols, which prohibit adverse discrimination in the treatment of persons under their provisions.

Over the centuries, the legal interpretation of equality has been so controversial that the French Revolution's prime movers who abolished the discriminatory feudal system, have been constrained to put égalité as one of the fundamental 'anti-discriminatory statements' in their national maxim, now universally known to read Liberté, Égalité, Fraternité.

Indeed, paradoxically, is it still true to say, as in George Orwell's Animal Farm: "All animals are equal, but some animals are more equal than others"?