I welcome The Human Rights and Equality Commission Act, 2019 and the Equality Act, 2019 presented for the second reading in the Parliament of, through which Malta fulfils the Paris Principles for National Human Rights Institutions.  

In light of the diverse instances where hate speech particularly online has been resorted to with a frequency and a vitriol that has shaken all that hold the principles of social justice at heart, I believe, these complimentary ‘pieces’ of legislation are a step in the right direction. 

I find that:

1. It is encouraging that the Equality Bill incorporates such an extensive list of characteristics against which persons may be discriminated. Some of the characteristics require further elaboration as to how the legislator and subsequently the courts will interpret them.  Age, belief, creed or religion, colour, ethnic or national origin, or race, disability, family responsibilities or pregnancy, family or civil status, gender expression or gender identity provide me with no particular queries. Language, nationality, political opinion, sex or sex characteristics, sexual orientation and health status provide me with no queries as to what the legislator meant however it would be increasingly helpful to have the legislator provide us with definitions of what is to be understood by genetic features, property, and social origin. I would also add lifestyle characteristics/choices/preferences including for example music preference, tattoos, piercing to name just a few, to the list as several still encounter prejudice, stereotyping and discrimination on a daily basis; leaving profound psychological, social and emotional impact on sufferers.

2. I feel somewhat sceptical of the way the quotas will be introduced within the public services primarily because the law itself does not specify at which level of seniority will the 40% quota be required. I believe that this may result in a box ticking exercise where the lower ranks of the public service might be inundated to reach the specific gender quota. The second reason for my scepticism is that while gender quotas are sorely needed if we really want to achieve social parity they will be a superficial glean of action if we do not tackle the real structural obstacles to female employment and advancement such as inadequate sharing of family responsibilities, unnecessary rigidity with work times and the impact (positive/negative) of child care, to mention but a few. These structural obstacles in addition to a strongly patriarchal culture still effectively diminish women’s opportunities from being able to fully participate in paid employment and to be effectively considered for senior positions of responsibility. I propose that additional to quotas the following may have a more profound effect in ensuring women have equal access to employment opportunities; additional paternity leave, flexible working hours for employees of all genders, child care services (tailored around the needs and following the evaluation of impact on family members) and effective work from home schemes. Eliminating the barriers that keep women from work is not merely a numbers game but should ensure that all parties have the freedom to pursue employment, domestic and a mix of responsibilities in a way that does not impede their economic, social and mental wellbeing.  The gender pay gap is such a negative mark and commitment to making this right is of the essence.

3. I am also aware that the balance between free speech and hate speech is a difficult path to walk and while on the most part, the document seems to thread these various interests with due sensitivity I find exception with the criterion of “any threatening, abusive or insulting words or behaviour”. I find this criterion to be farfetched, especially since the three verbs have not been interpreted in the act. We particularly think that the criterion of insulting is too vague to be helpful as it does not specify who will decide what is insulting and what is not. Should it therefore be construed that any form of dissent even when scathing but legitimate be caught in the purview of this wide verb? Such a heavy-handed approach might have the opposite effect to stimulating civil and rigorous debate and instead create a hegemony of ideas that once questioned may be silenced with the blessing of this act. I therefore urge that the word ‘insulting’ is removed, or a rigorous and restrictive interpretation given.

4. The human rights and equality commission’s attempt to bring together the various offices through the standing advisory committee is laudable and should act as a blueprint for other public authorities. The aim of removing silo mentalities and empire mentalities that pervade public servanthood results in work that is coordinated and synchronized thereby avoiding unnecessary replication. This thrust should be at the core of all initiatives creating or modifying public entities.  

5. The appointment of the board for equality following the appointment by the president on advice by the prime minister impinges on the freedom and liberty of the commission by allowing for the possibility of political appointments. Healthy representation would be best bestowed if all structures within the proposed Commission are approved by a 2/3 Parliamentary majority.  

6. The lack of a timeframe within which judgement must be issued by the board for equality allows for the Kafkaesque delays that are currently plaguing our law courts. While we fully recognize the importance of adherence to principles of natural justice we hold that the board should not be bound by the unnecessary formalities that plague the law courts rendering what could potentially be a process of a few months into a process that lasts years and even decades. These delays serve only to provide advantage to powerful parties within disputes as they are normally better equipped to wait out “the storm”, whereas weaker parties who require access to justice immediately will be disproportionately discriminated against. We therefore call on the legislator to set out a term of six months within which a decision must be issued. Extensions to this term may only be allowed by recourse to a more supreme authority such as the Court of Appeal in its superior jurisdiction.

7. I would also like to emphasize that while laws are an important tool to ensure the viability of certain values and visions for our society, they should always be seen as a tool of last recourse. We propose that the further integration of ethnic minorities, the desistance of sexism and homophobia and the implementation of measures aimed at providing equality to persons with disability as well as the other protected characteristics should be accompanied by an extensive social plan to ensure that through education and measures taken at the neighbourhood, local and community level these values are promoted and enforced. I also believe that greater education and awareness should be promoted through a variety of measures to ensure that civil discussion even about controversial and far-reaching topics can be engaged in without resorting to bile and hatred. Without education and continuous awareness laws will do nothing to win the battle for the hearts and minds of persons who might engage in behaviours the law seeks to punish.

While I find that these new laws capture the spirit of social justice that motivates them, their implementation and drafting remain a work in progress that requires much more consultation and fine-tuning to ensure that the ends sought to be achieved are in fact achieved.

Experts within the Faculty will be more than happy to present and put forward proposals and share ideas at Committee stage. 

This article was written in collaboration with Ms Samantha Pace Gasan and Dr Andrew Camilleri, Research Support Officers within the Faculty for Social Wellbeing