On Monday, Parliament will resume discussion of the draft equality bill (and a related bill on the setting up of an adjudicating body). While everyone has welcomed this comprehensive law, some parts and gaps have been met with serious criticism, not least from Church-related quarters. Is the concern justified?
Well, yes. You don’t need to be a churchy type, either, or even have the liberty of religious institutions in mind.
To be clear, the draft bill is generally excellent. It transposes European standards of equality and non-discrimination under a single legal act. It will make unacceptable discrimination more difficult.
Germany passed a similar bill in 2006, the UK in 2010. It’s good that Malta is joining them in 2020. Unfortunately, it’s not just catching up with these countries.
This law, in its current draft form, will not ‘Europeanise’ Malta. It will take two steps forward on equality for some but one step back on equality and liberty for others. It doesn’t have to. If other European countries have advanced equality for some without jeopardising the rights of others, why can’t we?
Some critics of the draft bill have sometimes over-egged their criticism. They have voiced concern about the prohibition of ‘religious symbols’ in public spaces except those deemed, by the secular authorities, to be of ‘cultural value’.
Now, you can have a legitimate concern about secular authorities deciding what counts as ‘religious’ and what has ‘cultural’ (that is, approved) value. That sounds a lot like state interference in religion. In France, it has led to some absurd consequences (a hijab is deemed ‘religious’, the yarmulke is ‘cultural’).
But some Maltese critics have said this reasoning could apply to symbols in Church schools.
The bill’s wording, however, refers to public spaces. If the state begins to consider Church schools to be public spaces, we have a bigger problem on our hands than symbols: the takeover of Church property.
Other criticism is justified. The draft has no reference to conscientious objection. It also has no explicit reference to the European Convention on Human Rights.
The equality bill, once passed, will override all other legislation in case of conflict, except for the Constitution. This ‘supremacy’ makes sense in most cases. But if it overrides the European Convention, something sinister will have happened.
The convention is a charter of fundamental liberties that protects us against the state’s abuses. The independent Strasbourg court has routinely found that the Maltese state has trampled over individual rights.
If the convention can be overridden by a national equality bill, it means that the state has once more achieved supremacy over fundamental rights. No more are they human rights. They have become civil rights – ours by virtue of belonging to this or that state. Being granted by the state, they can in principle be taken away.
Defenders of the bill in its current form retort that if the bill has no supremacy over the Constitution, and the charter is in the Constitution, then there should be no worries. If your fundamental rights are violated by someone invoking the equality bill, then you can go to court and win.
In principle, that’s true. In practice, it’s not. Litigation is expensive, energy-draining and can take years. Individuals and fund-pressed schools might avoid litigation because of the expense.
Suppose a Church school has its rights infringed. It takes the case all the way to Strasbourg. In five years, it wins outright. Will justice have been done?
No. Think about it as a parent with a child in a Church school. Over the five years, your child entered senior school... and left.
Church schools need no lectures from anyone on academic excellence- Ranier Fsadni
Meanwhile, your donations went towards funding the case instead of being invested in your child’s classroom. Justice? No, you were denied the service you wanted and which other European parents have.
All the bill needs is an amendment that adds an explicit reference to the European Convention. It would not subtract an iota from the equality rights granted by the bill. Not to include it would be a caprice. Or a sign of hidden designs on the fundamental rights of everyone – churchy, atheist, whatever.
Church schools also want a specific reference confirming the protection of their ‘religious character’ (full disclosure: I sit on the board of trustees of one set of Church schools, although this column is written in a personal capacity).
Once more, this character is arguably legally protected by implication, given the European directive that stands behind this bill. But protection-by-implication counts only in court. It does not protect you from vexatious expensive lawsuits or being browbeaten by the thought of such lawsuits.
Church schools are not asking for special exemption from treating all children with equal dignity in line with the equality bill. They are, rather, asking for the equality granted to other schools in Europe – for example, in Germany and the UK.
Parents with children in Church schools should have the same right of access to a particular good and service as that of their European counterparts. If there is no problem with including a reference that protects the religious character of schools, why not include it? The phrase ‘religious character’ or ethos is a term of art – there is sufficient jurisprudence to ensure it cannot be abused.
Church schools need no lectures from anyone on academic excellence. They lead the way in all subjects – from the creative arts to the hard-nosed sciences. What they ask is for the guarantee to teach religion according to the same standard of excellence.
Religion is like a language. It’s taught by immersion in an environment, not by rote. It needs conversation on a variety of subjects – with teachers who exemplify both principle and good sense. Only by being related to real concerns – like the environment and climate change, solidarity and the economy – can it be taught in a manner that produces adults who can relate faith to 21st-century issues.
That is a service only an unequal society would deny access to. It’s a service only a government careless about liberty would jeopardise.