Parliament is currently debating two important Bills regarding Equality. They contain serious shortcomings and in some cases constitute a serious danger to freedom of conscience and expression.

The Bills establish an Equality Board.

This board has the power to impose hefty administrative penalties (including a daily penalty of €500) if it finds that any person or organisation breached the law which contains vast and wide terms defining discrimination. This power is in breach of the Constitution. Our courts have consistently and repeatedly held that stiff administrative penalties amount to criminal sanctions and can only be imposed by a court of law. Period.

The Bills define discrimination in wide terms. Any advert or printed material which is remotely offensive, or even causes “mental harm” to a victim is illegal and subject to hefty fines imposed by organs which are not a court of law.

A poster published by a Catholic organisation affirming that marriage is only the union between one man and one woman would probably fall foul of the provisions of these new Bills.

Their leaders can be subjected to no more than six (!) different proceedings: constitutional action by the alleged victim, proceedings before the Equality Board composed of persons who are neither magistrates nor judges, constitutional proceedings instituted by the newly established Human Rights Commission, proceedings for damages before a court instituted by the said Commission, and proceedings before the Equality Board instituted at the instance of the Commission!

The new laws, if approved, will prohibit religious symbols in public which do not have “a cultural value”. Will a crucifix in the countryside amount to a prohibited religious symbol?

What constitutes such cultural value shall be decided by the government-appointed Equality Board. The term “religious symbols in public” is wide enough to cover a crucifix hanging from a necklace.

The Bills declare themselves to be superior to any other ordinary law except the Constitution

In the UK, a ground hostess was dismissed from British Airways for refusing to remove such a religious symbol. Hopefully this new law will not be interpreted so as to prohibit any person from expressing his/her religious convictions through symbols, attire or any other manner.

If these Bills become law, Catholic schools, and for that matter any school with a religious ethos, will have to abide by the strict terms of the new law as regards teaching. This means that any teaching or curriculum which is deemed to be offensive to any minority group or person shall be illegal.

Although the teaching of religion is excluded from such strictures, the fact is that a Catholic school is so styled not because it teaches religion – even State schools are constitutionally bound to do so – but because the Catholic ethos permeates  the entire curriculum, including such subjects as science, ethics and philosophy.

Catholic schools will also be prevented from considering the character and private life of candidates for filling teaching vacancies in such schools.

A person who openly advocates the introduction of abortion in Malta would still, unless he applies to teach religion, be able to claim discrimination if he is not selected to teach in a Catholic school.

Another shortcoming of the Bills is that the onus of proof regarding discrimination is shifted on the person accused of such discrimination. It is the latter who has to prove that he is innocent rather than the accuser who has to prove that such person is guilty.

This goes against all international standards of procedural fairness.

Besides, even non-intentional conduct, if deemed to be discriminatory, is an offence under the new law. Discrimination covers even anything which might reveal an “intention” to discriminate.

The Bills define human rights inter alia as including the jurisprudence of “international courts” without defining the term.

Consequently the term “human rights” can include matters which are not considered legal up till now in Malta. There are international courts which have accepted abortion and euthanasia as a human right. Will the jurisprudence of these courts be stealthily inserted in the Maltese legal system?

This is being said because the Bills declare themselves to be superior to any other ordinary law except the Constitution, and therefore in case of conflict, prevail over any such other law.

They, therefore, apply irrespective of what an ordinary law such as the Criminal Code (which prohibits abortion) or the Embryo Protection Act (which prohibits maternal surrogacy) may provide for. They even, as drafted, prevail over the European Convention Act which is still an ordinary law.

This is one of the most dangerous provisions in the Bills,  namely legislating by stealth, by referring and acting subserviently to foreign jurisprudence to follow a hidden political agenda.

 The perils and shortcomings of these Bills need to be addressed by both sides of the House. Members of Parliament bear a grave responsibility to  future generations.

Tonio Borg is a former European Commissioner and former Deputy Prime Minister.

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