Human rights protection in Malta is primarily protected by the courts of constitutional jurisdiction, both under the Constitution of Malta and the European Convention Act, the latter enactment incorporating into Maltese Law the Council of Europe's European Convention on Human Rights.

Government is however proposing to lower the human rights protection that we citizens enjoy in the case of human rights and equality matters regulated by the proposed Bill. Instead of the court structure, matters concerning the human rights and equality persons in the Bill will now be decided by a National Commission for Human Rights and Equality, a parallel body that the government wants to establish to the independent and impartial courts.

Why is the Equality Law regressive and should be ditched? Because the National Commission for Human Rights and Equality does not pass the independence and impartiality test. The National Commission fails the test of human rights itself.

First, contrary to the judiciary who are appointed by an autonomous Judicial Appointments Committee and not by government or parliament, the members of the Commission are to be appointed either by parliament and, if no agreement is reached between government and opposition in the House of Representatives, by government itself in so far as the Commissioner is concerned; and by an Appointments Commission that the Bill proposes to establish, in so far as the other nine members are concerned.

Second, the Commissioner is appointed by the President of Malta (wrongly designated in the Bill as 'President of the Republic', an inexistent office in the Constitution!) acting in accordance with a resolution of the House of Representatives supported by the votes of not less than two-thirds (2/3) of all the members of the House. In other words, the appointment of the Commissioner is a purely political appointment, not subject to a robust meritorious selection process as in the case of the judiciary but based on the whims and caprice of the politicians in the House of Representatives. There is then an anti-deadlock mechanism contemplated in the Bill that bestows the final say in the appointment procedure in government if the opposition fails to play ball to the government's liking. Democracy in action.

Third, nowhere does the Bill indicate detailed criteria for appointment of such Commissioner except that such person must have knowledge of, and at least five years of professional experience in, any field within the human rights or equality sector. This wording is very vague. For instance, a person who has never studied Human Rights and Equality Law in depth - for instance in a Master's in the Human Rights Law and Practice offered by the Faculty of Laws of the University of Malta but, perhaps, followed a study-unit in an undergraduate course on Human Rights and Equality Law and has professional service in any such field (for instance, as a social worker or psychologist), then such person can be appointed Commissioner! For the law does not qualify the knowledge and the professional experience required. It can be any warranted profession, not necessarily the legal profession. Hence, a professional in a non-legal field who has never studied in depth Human Rights and Equality Law can be appointed Commissioner precisely to deliver legal opinions of which s/he has limited knowledge therein. The standard is so low that the quality of justice that will be administered by this Commissioner will consequently suffer abysmally. Unfortunately, it is the citizen who has to pay for the incompetence of government.

Fourth, the appointment procedure of Commissioner is simply and plainly a farce. If the 2/3 vote is not reached after two successive attempts, the appointment procedure converts itself from a bipartisan appointment to one decided only by government. There is no legal requirement imposed upon the two bipartisan political parties to reach an agreement. On the contrary, government is being empowered to ignore totally the opposition and move on to appoint one of its own lackeys as is traditional in this country post-independence to date. Where is the independence of the Commissioner from government? It is only on paper for the Bill does declare the Commission to be independent but through the appointment procedure government can exercise considerable influence on its appointee. And that is the whole idea - to make the Commissioner subservient to the minister, Commission independence on paper notwithstanding.

Fifth, the other nine members of the Commission - a fairly large number for such a Commission (the Employment Commission has only five members; the Constitutional Court has only three members) - are appointed by an Appointments Commission, made up of: (a) the Chairperson of the Public Service Commission who presides. Such person need not have any knowledge in any field within the human rights or equality sector nor any experience therein; (b) a person who has knowledge in any field within the human rights or equality sector. It is not qualified what such knowledge should be. If he has read the Bill, will that not suffice as knowledge for the purpose of the law? Probably. Does s/he need to have legal professional experience in the realm of human rights and equality law? There is no requirement to that effect; and a retired Judge or Magistrate. This last member, not being a sitting member of the judiciary, does not benefit from the independence and impartiality of judicial office. Once retired, that former judicial officer no longer enjoys independence and impartiality in terms of the Constitution. S/he will enjoy independence only under the Bill, that is, the member is appointed by government subject to ministerial influence.

Sixth, why establish an Appointments Commission when there is already a constitutional Judicial Appointments Committee that has served the country well since its establishment and that carries out a very thorough and strict selection procedure that is of superlative quality and that will by far surpass excessively in quality the lower appointment standards being proposed in this Bill? Why are standards being thrown to the dogs in the case of the members of the National Commission for Human Rights and Equality?

Seventh, no detailed criteria are established as to what factors will be taken into consideration to establish the knowledge that a person should have in human rights and equality. Should it be a university undergraduate degree? Should it be a law degree? Would a study-unit of 4 ECTS in human rights and equality law suffice? Or should it be a Master's degree in Human Rights and Equality Law? Should this knowledge be formal and certified by a competent authority or can it be bought over the internet from a certificate, diploma, or degree mill?

The Commissioner and the members of the Commission are removed by Parliament following a two-thirds vote in the House. But this procedure runs counter to the case law of the European Court of Human Rights that does not allow politicians to meddle in the removal process of an entity similar to a court entrusted none other than with human rights and equality matters.

The Bill, undoubtedly, needs to go back to the drawing board as it is totally ill-conceived in so far as the appointment and removal of the National Commission is concerned.

Kevin Aquilina is Professor of Law, Faculty of Laws, University of Malta