Rather than fight discrimination, two equality Bills being debated in Parliament threaten freedom of expression and promote regimentation of a way of life where everyone must act identically, a pro-life group has warned.

The Life Network Foundation expressed deep concerns in a position paper on Bills 96 and 97, in the pipeline since 2016.

Back then, the Church had also flagged certain provisions of the proposed legislation, which was never enacted, saying they went beyond EU directives and encroached on religious freedom.

Three years down the line, the legislation has been revived albeit in two separate Bills, which complement each other. Furthermore, a number of changes were made in the wake of recommendations by the Venice Commission, the Council of Europe’s group of experts on the rule of law.

The amendments include a mechanism ensuring the Equality Commissioner would have more security of tenure.

However, Life Network is claiming that the revised version is still of concern on different fronts but mainly with regard to freedom of expression and freedom of conscience.

While flagging “vague” definitions for terms like victim and harassment, the pro-life NGO said certain matters had not been addressed despite being flagged by the Venice Commission.

In line with the proposed legislation, unintentional conduct might be perceived as being offensive and this will have negative repercussions on the freedom of thought, conscience, religion and expression, the paper states.

It would have been much better had the Bill made a categorical exclusion that matters of personal opinion, even deemed to be ‘offensive’, would not fall under it, the NGO said.

Though the proposed legislation did have a list of exceptions, these might not be sufficient, it was pointed out.

Certain matters not addressed despite being flagged by the Venice Commission

Dissemination of Catholic values was only allowed within the strict parameters of religion lessons but if one had to express the same exact views in public there would be no safeguard against being sued, the NGO said.

Concerns were also raised on a very “subjective” provision, which states that display of religious symbols in public places would only be allowed if they had cultural value. Does this mean that an employee wearing a cross could be fired, as was the case of a British Airways staff member a few years ago, the NGO questioned.

The Life Network also sounded the alarm bells on advertising, saying that, under the proposed legislation, anybody printing any material such as billboards, flyers or books in which they stated their beliefs that marriage was only between a man and a woman would be liable to prosecution.

From an employment perspective, the draft legislation was also criticised as it could threaten the ethos of Catholic schools when it came to recruitment.

Under the new provisions, an abortion campaigner who was having an affair could not be prevented from being a teacher in a Church school even if this would be in blatant breach of Catholic values, the NGO warned.

Another criticism was levelled on the possibility that the new legislation could be exploited for the introduction of surrogacy for same-sex couples. This is due to the fact that the proposed legislation has a legal status that is superior to that of the Embryo Protection Act.

Moreover, a vague interpretation of what constitutes a human right could be exploited for the introduction of abortion and euthanasia. This is due to the fact that, under the new proposals, human rights also included those established by “jurisprudence of Maltese and international courts”.

In the absence of any indication of which international courts were being referred to, such possibility existed, the NGO said.

From a legalistic angle, Life Network said the proposed legislation could be unconstitutional as the Equality Board could impose fines of up to €20,000 or €500 daily, which only an established court was empowered to do. This concern was based on two landmark judgments involving the Federation of Estate Agents against the Director of Competition and the Nationalist Party against the Electoral Commission.

Moreover, it was pointed out that the Equality Commissioner could ultimately be elected by a simple majority in case there would be no agreement on a candidate enjoying two thirds support among MPs. The NGO noted that no such proviso existed for the Auditor General, the Ombudsman and the Commissioner for Standards in Public Life.

Another issue raised related to the freedom of conscience as the new laws would oblige providers to offer services they were consciously against.

Health service practitioners would no longer have the option to refuse to render a service even if this went against their moral beliefs, it was pointed out.

Ministry explains

In a reaction, the Ministry of Education the bills had nothing to do with freedom of expression and freedom of conscience.

"The Equality Bill and the Human Rights and Equality Commission Bill deal exclusively with the right to equal treatment and non-discrimination. The expression of an opinion or the holding of a belief is a completely distinct matter from the Bills’ mandate. Moreover, the belief, creed, or religion of an individual is also a characteristic protected from discrimination by the Equality Bill," it said. 

On the claim that the definitions of ‘victim’ and ‘harassment’ are ‘vague’ the ministry said both definitions are already established in Maltese laws, notable article 251A of the Criminal Code which deals with harassment as a criminal offence, the Victims of Crime Act, as well as the Gender-Based Violence and Domestic Violence Act.

"There is an important difference between being ‘vague’ and allowing our courts the necessary discretion and flexibility to implement the law in accordance with the particular circumstances of the case before them and through the development of case-law," the ministry said. 

On the proposal that ‘personal opinion’ should have been excluded from the bills, the ministry said this was already the case. 

"Discrimination at law does not deal with personal opinions or beliefs. Personal opinion is the view that any individual may choose to form on any given subject; discrimination is the prejudicial treatment of an individual, or groups of individuals, based on a characteristic they hold. They are clearly distinct."

The ministry denied that the bills would lead to workers being fired from their job for wearing a cross at work.

"Should an employer discriminate against a specific worker for displaying his beliefs, that worker is protected by the Equality Bills."

It said the bills strike a fair balance between the ethos of all religious institutions, and the right of the worker to live their personal lives as they deem fit. 

"The Equality Bill understands that certain jobs, such as a teacher of religious education, requires that such teacher holds a particular set of beliefs. The Equality Bill also understands that institutions based on religious ethos have the right to enforce policies which reflect that ethos within their institution.

"The Equality Bill protects the institutions’ right to do so," the ministry insisted.

"However, the Bill also understands that those policies should not impose an undue burden on the private life of the worker."

It described as 'unfounded' any claims that the bills will be exploited for the introduction of surrogacy for same sex couples or the introduction of abortion and euthanasia.

The ministry said the Commissioner of the Human Rights and Equality Commission will be totally separate and distinct from that of the members of the Equality Board with quasi-judicial authority. While the Commissioner will be leading the new Commission from a policy perspective, the Equality Board, which will be deciding individual cases of alleged discrimination, will be independent from the Commissioner and the Board members are guaranteed independence and impartiality to the same extent as that guaranteed to a judge.