Reflections on the White Paper Towards the Establishment of the Human Rights and Equality Commission by Chief Justice Emeritus Joseph Said Pullicino Parliamentary Ombudsman Malta July 2015 July 2015 Office of the Ombudsman 11, St Paul Street Valletta, VLT1210 Malta Tel: +356 2248 3200, 2248 3216 Fax: +356 2124 7924 Email: [email protected] www.ombudsman.org.mt Contents Foreword 1 Introduction 5 Chapter 1 - The Legacy of Human Rights Protection in Malta 9 A brief historical note 10 Chapter 2 - Statutory definition and judicial enforcement of fundamental rights in Malta 13 Chapter 3 (A) - Existing judicial structures for the protection and enforcement of fundamental rights in Malta 17 Constitutional Protection 18 Chapter 3 (B) - Conventional Protection 23 Chapter 3 (C) - Non-judicial, constitutional protection 26 Chapter 3 (D) - Protection by Authorities set up by law 31 Chapter 4 - The way forward 37 Chapter 5 - Notes on the proposed Equality Act 39 General Comments 40 Specific Considerations 41 Distinction between “creation” and “application of rights” 42 Hierarchy of rights to be recognised and respected 43 Ignoring hierarchical rights would not be constitutionally correct 44 Equality Law must be fully compliant 45 Chapter 6 - Relationship between the Equality Act and the Human Rights and Equality Commission 47 Other considerations 48 Dual pronged initiatives 48 Enforcement by existing competent authorities 49 Need for full consultation 49 Primary objective of the proposed Equality Act 51 Ordinary Legislation must be economically sustainable 52 I Chapter 7 - Enforcement Provisions 55 Issues requiring mature consideration 56 Enforcement in other jurisdictions 56 Conclusion 59 Chapter 8 - Notes on the proposed Equality Commission 61 General Comments 62 A. Is there need for another NHRI in Malta? 63 B. Which NHRI model is best suited for Malta 65 C. Does the basic model fully comply with the basic guidelines of the Paris Principles? 77 Chapter 9 - Need to regulate relationships with other institutions 79 Different approaches 80 Chapter 10 - Concluding Remarks 83 The ideal legal framework 84 Parameters of jurisdiction 93 Composition 86 Functions 87 Jurisdiction 89 Safeguards to ensure due process 94 Exercise of quasi-judicial powers 96 Investigative process 98 A. The Commission acting as a tribunal 98 B. If the investigation leads only to recommendations 99 Procedural improvements 99 The processing of complaints 100 Effectiveness and enforceability of decisions 101 Appointment and tenure of office 105 Term of office 106 The Executive Director 107 Financial independence 107 Final Reflection 109 II Annexes 113 Annex I - Further Reading 114 Annex II - Paris Principles 115 Annex III - Belgrade Principles 123 Annex IV - Full text of the declaration of the Rights of the inhabitants of the islands of Malta and Gozo signed on 15 June 1802 129 Annex V - The Danish Institute of Human Rights 131 Annex VI - Netherlands Institute for Human Rights 134 Annex VII - The Scottish Human Rights Commission 137 Annex VIII - The Swedish Equality Ombudsman 141 Annex IX - United Kingdom - Equality Act 144 Annex X - Powers and functions of the Equality Commission in Africa 146 Annex XI - Correspondence between the Parliamentary Ombudsman Chief Justice Emeritus Joseph Said Pullicino and Ms Laurien Koster, Chair of College voor de Rechten van de Mens 148 III List of Abbreviations NHRI - National Human Rights Institution HREC - Human Rights and Equality Commission NGO - Non-governmental organisation NCPE - National Commission for the Promotion of Equality KNPD - National Commission for Persons with Disability EU - European Union ICC - International Coordinating Committee on National Institutions for the Promotion and Protection of Human Rights UN - United Nations EHRC - Equality Human Rights Commission IV Foreword V VI Foreword by Prof Kevin Aquilina, Dean, Faculty of Laws, University of Malta. On 10 December 2014 – International Human Rights Day – the Ministry for Social Dialogue, Consumer Affairs and Civil Liberties, published a White Paper entitled Towards The Establishment Of The Human Rights And Equality Commission. It invited comments from members of the public and other interested bodies upon the interesting recommendations contained therein. The Parliamentary Ombudsman is, in this present publication, expressing his positive reception of the White Paper’s suggestions whilst setting out concrete proposals intended to develop further the rationale of the White Paper thereby ensuring that when the legislation which will follow therefrom ends out to be suitable to, and compliant with, the administrative environment in Malta so that the White Paper’s objectives are fully achieved, are well planned out, institutionally coherent and implemented successfully. The Parliamentary Ombudsman also partakes of the national human rights institution in Malta and thus has a major role to play in ensuring the proper establishment of the Human Rights and Equality Commission. After having been requested by the Parliamentary Ombudsman to write a Foreword to this publication, I read and pondered upon the main thrust of both the White Paper and the Ombudsman’s reflections thereupon. I must unhesitatingly confess that I am in agreement with both documents which, in my view, very much complement each other. The Ombudsman’s Reflections give flesh to the White Paper’s spirit. Needless to say, the White Paper sets out the principles which the Government wants to achieve in the realm of human rights and equality law; the Ombudsman’s Reflections chart out the ways and means how these principles can be concretised in practice in Malta having due regard to extant entities which carry out duties in the realm of Human Rights law and Equality Law. That is why I consider the White Paper and the Reflections to be complementary to each other. The Ministry for Social Dialogue, Consumer Affairs and Civil Liberties has to be lauded for the well-deserved initiative it is taking in order to update Malta’s human rights and equality laws to current international and European standards. Currently there exist gaps in the legal framework and lack of coherence in the standards adopted by the concerned institutions. I consider this Government-led initiative to be an excellent step in the right direction and an inevitable consequence of the reform of the Ombudsman institution which was carried out by Parliament in 2010. The first phase in this reform exercise of the national human rights institution in Malta saw sectoral ombudsmen being re-organised and grouped together 1 within the Office of the Parliamentary Ombudsman under one law without, in turn, losing their respective autonomy. In terms of the 2010 amendments to the Ombudsman Act it became possible to establish Commissioners for Administrative Investigations within the Parliamentary Ombudsman institution. Indeed, under subsidiary legislation made under those amendments – the Commissioners for Administrative Investigations (Functions) Rules, 2012 (Subsidiary Legislation 385.01) – three Commissioners for Administrative Investigations were established and appointed namely, the Commissioner for Education, the Commissioner for Environment and Planning, and the Commissioner for Health. These amendments are flexible enough to allow the establishment in the future of other Commissioners for Administrative Investigations. Overall, the 2010 reform has been successful, worked out well and all Commissioners are functioning autonomously and in a co-ordinated fashion within this restructured Ombudsman institution. The second phase in the reform of the national human rights institution in Malta focuses on two aspects: equality and non-discrimination, on the one hand, and human rights, on the other. As was the situation with the Ombudsman institution prior to the 2010 amendments to the Ombudsman Act, in so far as equality and non-discrimination are concerned, there exist today state entities which are very sectoral in nature – focusing on gender and race discrimination, disability rights and children’s rights – which do not address equality and non- discrimination in its multiplicity and within one national institution. First and foremost, it is of paramount importance that these three sectoral entities are all brought within the fold of one institution – the proposed Human Rights and Equality Commission. Secondly, their remit ought to be extended in the new legislation to cover all forms of discrimination rather than allowing such an extension to take place sporadically and in a piecemeal fashion as has been unfortunately the practice in the past. This is, in fact, what the White Paper is correctly proposing to achieve. Thirdly, the new legislation needs to clarify that it is without prejudice to, and is saving the powers of, extant constitutional and other legally established authorities which implement human rights law such as the Broadcasting Authority with regard to freedom of expression, the Commission for the Administration of Justice with regard to the judicial system and the Electoral Commission with regard to the right to vote. Naturally there are other administrative authorities which, in one way or another, administer human rights law and their powers have to be reconfirmed as well. Fourth, the new legislation should retain intact the powers ascribed by law to judicial and quasi-judicial bodies entrusted to provide remedies in the case of breaches of human rights law such as the Civil Court, First Hall, the Constitutional Court, the