Although the Equality Bill has been defeated in the House of Representatives, this should not be interpreted simply as a government botched attempt to introduce human rights and equality legislation in Malta. It should be considered as a golden opportunity to adopt a legal framework that suits the people who will have recourse to that law and any institution established thereunder.
Two proposals are being made in this contribution. The first is intended to indicate how to expedite court proceedings in connection with human rights and fundamental cases, and the second is to establish an institutional structure that is completely independent and impartial of government and parliament so that no form of political clout or patronage can be exercised upon the competent authority set up to deal with equality issues.
An effective way to strengthen human rights and equality law
The point of departure, before even addressing whether a National Commission for Human Rights and Equality is really needed as proposed in the Human Rights and Equality Bill, is to expedite proceedings before the courts of constitutional jurisdiction (the Civil Court, First Hall, Constitutional Competence, and the Constitutional Court). This can be done, inter alia, as follows:
First, once the Bill envisages consequential amendments to the Constitution, the opportunity should be taken to introduce a few changes to the Constitution to expedite human rights and equality court cases. The first measure that should be adopted is that all constitutional cases, including Human Rights and Equality Law cases, ought to be instituted against only one defendant - the State Advocate - who will be constitutionally mandated to represent the state.
A study of decided constitutional cases indicates that considerable time is lost in judicial proceedings simply to identify who is the appropriate authority of the state to be sued, that is, who is the legittimu kontradittur (the legitimate defendant to be sued on behalf of the state). If the Constitution lays down authoritatively that the defendant should invariably be the State Advocate (and nobody else) in representation of the Republic of Malta, then all the time that today is lost to arrive at a correct determination of this point, both in the court of first instance, and in the Constitutional Court, is peacefully laid to rest.
Second, an obstacle to obtaining a timely remedy to Human Rights court cases is that Human Rights Law actions are considered to be an extraordinary remedy. Whilst this might have been the case in 1961 when the first set of Human Rights were introduced in Chapter 2 of the 1961 Constitution and then re-enacted with modifications in the 1964 Constitution, the number of constitutional cases focusing on Human Rights today does not run into a handful but has spiraled into astronomical figures. Indeed, the extraordinary action has become the order to the day and there is nothing extraordinary left about it.
As a matter of fact, the constitutional remedy should never be labelled as 'extraordinary'. Therefore, all courts should have jurisdiction to decide human rights actions with a right of appeal to the Constitutional Court. This means that the Civil Court, First Hall, will not continue to enjoy the monopoly and exclusive jurisdiction that it currently enjoys to determine Human Rights court cases. This proposal will cut down also on unnecessary time-consuming proceedings in the form of the reference procedure whereby a court can be requested to refer a human rights case to the Civil Court, First Hall (Constitutional Competence), or a constitutional court cases is introduced independently of ongoing proceedings, whilst combining the constitutional remedy within the ordinary law remedy. This means that any superior and inferior court will deal directly with a human rights case itself and does not need to await first a judgment of the Civil Court, First Hall (Constitutional Competence) and then the Constitutional Court.
Third, once the extraordinary remedy can be combined with the ordinary remedy - a mixed action of Human Rights and Tort Law - this measure will expedite proceedings as there would be no need, first, to resort to the ordinary remedy and, years later after all the stages of this remedy are exhausted, including appeal proceedings and retrial proceedings, resort to the constitutional remedy at first instance and subsequently at appellate stage. Through this measure considerable time will be gained with the courts providing a more efficient remedy than today because instead of having five different cases deciding what is in reality one issue, there will be only two courts that will decide the case: a court of first instance (whichever court that might be) and, on appeal, the Constitutional Court.
Fourth, the Constitutional Court should be presided by three full time judges who perform duties only in that court. These should be a President of the Constitutional Court (who is not the Chief Justice as the latter will continue to preside the Court of Appeal) and two senior judges. Once these judges are relieved from non-constitutional duties of a civil, commercial, administrative, and criminal nature, they can expedite constitutional appeal hearings and delivery of court judgments in by far a more expeditious time than today.
If these four measures that expedite judicial proceedings before the courts are not introduced, then the changes proposed in the Human Rights and Equality Bill will be lobsided and partial, and parliament would have lost the opportunity to ensure a speedier procedure in obtaining justice for the ordinary citizen. As the Equality Bill stood, it failed to address seriously the backlog of constitutional court cases pending before the courts of constitutional jurisdiction.
Fifth, in order to consolidate all cases of discrimination in a judicial impartial and independence court, it is also proposed that the Employment Commission that was established in 1974 for determining cases of political discrimination be totally done away with as this Commission does not satisfy the criteria of judicial independence and the courts are to be instead entrusted with determining these cases.
These five measures will ensure that there is no toing and froing of cases from one court to another and that judicial bureaucracy is cut to a minimum. These bureaucratic measures cost considerable amounts of money to the state and to the persons who resort to court proceedings to safeguard their rights against the arbitrariness of the state and, therefore, are urgently needed.
An effective institution to safeguard human rights and equality disputes
The Equality Bill proposed the establishment of a Commissioner and a Commission to be made up of a Commissioner and nine members. If one looks at other models that have been used in Malta, it results that the Auditor General does not benefit from an Auditor Commission, the Ombudsman does not have recourse to an Ombudsman Commission, and the two Commissioners for Standards (for politicians and the judiciary) do not have recourse to any Politicians' Commission or Judicial Commission.
What is therefore being suggested here is to establish a fourth Commissioner for Administrative Investigations within the Office of the Ombudsman, similar to the current three (those on planning and the environment; health; and education). The fourth commissioner, who like the Ombudsman and the three Commissioners appointed under the Ombudsman Act, will be an Officer of Parliament and totally independent from government.
As the Human Rights and Equality Commissioner will essentially be investigating complaints against the public administration, it will make a lot of sense to situate this Commissioner within the Office of the Ombudsman that will make available to the Commissioner all the required resources and facilities as it already does to the other three Commissioners.
The method of appointment, discipline, and removal of the Commissioner for Human Rights and Equality will not give rise to any controversy so there is no need to reinvent the wheel once the Ombudsman Act already caters for all these matters. Nor is there the need to amend the Constitution to establish such office or to spend public money to create another office and an Appointment Committee as the defunct Bill was proposing. Civil society organizations and private individuals who make use of the Office of the Ombudsman recognize how thorough and meticulous that office processes citizen complaints and this Office has gained the trust of everybody.
These two proposals have only one aim in mind: to provide the citizen with an effective and expeditious enforcement mechanism for human rights and equality cases that cuts down on bureaucracy, uses extant institutions, does not add more financial burdens to state coffers, does away with controversial anti-deadlock mechanisms, curbs down on the establishment of a new Appointment Commission, raises the standard of removal from office to that of a qualified (two-thirds) parliamentary majority, removes the Commissioner from the effective control of government, and are eradicated in a robust regime that guarantees impartiality and independence not only on paper as the Equality Bill did but - more importantly - in practice.
Kevin Aquilina is Professor of Law, Faculty of Laws, University of Malta