XY pro et noe vs Attorney General et

Court of Appeal

Judges:

Chief Justice Vincent Degaetano

Joseph Camilleri

Joseph A. Filletti

18 July 2006

This was an appeal to the Constitutional Court from a judgement of the First Hall, Civil Court (25/01/2006) in its Constitutional jurisdiction. In the first instance, Article 17(1)(a) of the Maltese Citizenship Act, Chapter 188 of the Laws of Malta (hereinafter called “the Act”) had, inter alia discriminated against the plaintiff’s son to the extent of denying him Maltese citizenship on the basis of sex and consequently in breach of the Maltese Constitution.

The plaintiff, a British citizen, gave birth to X in Scotland in 1996 from her extramarital relationship with AB, a Maltese citizen. She filed Court proceedings to have AB declared as X’s father and to force him to pay maintenance as he had neither acknowledged X nor ever paid maintenance.

Plaintiff wanted X to obtain Maltese citizenship but was faced with legal obstacles which she attempted to overcome through these human rights proceedings. She also wanted this citizenship for economic reasons connected with the eventual tertiary education of X particularly because there are no university student grants in Scotland (only student loans).

The legal obstacle was Article 5(2)(b) of the Act:

5(2) A person born outside Malta on or after the appointed day shall be deemed to have become or shall become a citizen of Malta at the date of his birth:

…

(b) in the case of a person born on or after the 1st August, 1989, if at the date of such person’s birth, his father or mother is a citizen of Malta…

Article 17(1)(a) continues that (1) In this Act … any reference to the father of a person shall, in relation to a person born out of wedlock and not legitimated, be construed as a reference to the mother of that person;

Since X was deemed illegitimate in terms of the Act, Article 5(2)(b) would require plaintiff (the mother) to have been a citizen of Malta at the time of the birth for the child to qualify as a Maltese citizen. Alas, plaintiff was a British citizen. Had the same scenario been applied to a legitimate child having parents with the same citizenship, the child would have acquired Maltese citizenship. X was being discriminated against purely due to his illegitimate status.

The plaintiff pleaded that Article 17(1)(a) and other discriminatory articles hindering the attribution of citizenship under Article 5(2)(b) be deemed null and void.

First Hall, Civil Court – Constitutional Jurisdiction

•Article 17(1)(a) of the Act was discriminatory on the basis of sex and in violation of Article 45(1) and 45(3) of the Constitution.

•A copy of the judgement was to be sent to the Honourable Speaker of the House of Representatives for appropriate action to amend the law.

The Court

Defendants argued that Article 45 was irrelevant because it mentions discrimination on the basis of race, place of origin, political opinions, colour, creed or sex. Nowhere did it prohibit discrimination on the basis of birth. Referring to a 1997 case, the Court noted that despite the fact that status of birth is not mentioned, sex was included. Clearly the legislator wanted to protect the individual both from discrimination by the Law (Article 45(1)) as well as discriminatory treatment (Article 45(2)).

Article 17(1)(a) of the Act distinguished between legitimate and illegitimate children in such a way that in certain cases, attaining Maltese citizenship was rendered impossible. The discrimination was strong both in relation to the requisites as well as with respect to the effects. The fact that the Act stated that when the law referred to the father it should be understood as the mother, could be understood as sexual discrimination.

The fact that where a child was born illegitimate (out of wedlock), it is the mother’s citizenship alone that may be considered, was sexual discrimination against the father.

With regard to the claim that discrimination on the basis of birth was not mentioned in Article 45, the Court disagreed with the reasoning in a 2002 case which had stated that the discrimination must be qualified by the specific grounds mentioned in Article 45(3). In any case, sexual discrimination is mentioned. The fulcrum of the problem was that it was the sex of the father or of the mother that could pass on citizenship to the child: hence, it all depended on the sex of the Maltese parent.

Defendants claimed that this provision was based on the exigencies of society and the principle that mater semper certa est. However, the Court held that today, with DNA testing, parentage may easily be established.

Court of Appeal

Defendant appealed claiming absence of any human rights violation. Discrimination due to and on the basis of legitimacy or otherwise did not fall within the parameters of the six specific grounds mentioned in Article 45(3) of the Maltese Constitution. In this case, discrimination was not on the basis of the child’s sex but on the basis of his illegitimacy.

Article 45(3) clearly showed that the difference in treatment must be due to the sex of the person alleging the discrimination and not due to a condition applicable to a person being legitimate or illegitimate. The condition applicable in Article 17(1)(a) applied to all persons equally without discrimination.

The Constitutional Court agreed and accepted defendant’s pleas deciding that the appeal was well-founded in law, Article 17(1)(a) of the Act did not discriminate and overturned the judgement delivered at first instance.