UNFULFILLED POTENTIAL: HUMAN RIGHTS AND EQUALITY COMMISSION BILL AND EQUALITY BILL Input on the proposed Human Rights & Equality Commission Act, Equality Act (November, 2019) T ABLE OF C ONTENTS TABLE OF CONTENTS 2 INTRODUCTION & BACKGROUND 3 ADITUS FOUNDATION 4 THE HUMAN RIGHTS & EQUALITY COMMISSION ACT 5 DEFINITION OF “HUMAN RIGHTS” 5 DEFINITION OF “PERSON” 5 APPOINTMENT OF THE COMMISSION 6 TERMINATION AND RESIGNATION 7 VALIDITY OF PROCEEDINGS 7 POWER OF THE COMMISSION TO TAKE UP HUMAN RIGHTS CASES, INCLUDING CASES QUESTIONING THE CONSTITUTIONALITY OF SPECIFIC LEGAL PROVISIONS 7 ANNUAL REPORT 8 STANDING ADVISORY COMMITTEE 8 COMMISSION REQUESTING THE BOARD TO INITIATE PROCEEDINGS 8 COMPOSITION OF THE BOARD 9 REFUSAL TO HEAR 9 APPEALS FROM BOARD DECISIONS 9 THE EQUALITY ACT 11 PROTECTED CHARACTERISTICS 11 DISABILITY 11 NATIONALITY 11 HEALTH STATUS 12 DISCRIMINATION 12 APPLICATION 13 ACCESS TO GOODS AND SERVICES 13 SPOUSES OF SELF-EMPLOYED 14 REMEDIES 14 2 Input on the proposed Human Rights & Equality Commission Act, Equality Act (November, 2019) I NTRODUCTION & B ACKGROUND aditus foundation is pleased to present its feedback on these two important Bills. We have been following their development since their inception, regularly engaging with the Equality Ministry on their general approach as well as on their technical content. These submissions come after input provided to the Ministry in 20141 and 20162, and following participation in a series of meetings with Ministry officials and other stakeholders. A comprehensive national framework that encompasses anti-discrimination legislation and supporting policies is crucial to mainstreaming and integrating people belonging to the various minority groups that exist within our society, such as gender and sexual minorities, religious minorities, racial or ethnic minorities, persons with a disability, age minorities and the like. Although minority groups face discrimination in various spheres of life, the number of complaints filed with the various existing equality bodies remains low. This could be attributed to a number of factors, such as lack of information, procedures being too burdensome, lack of specialised legal support and fear. The current legal framework is piecemeal and is found in various legal instruments each having a different scope which in some instances overlap, a variety of actions for redress and different reporting or equality bodies. This illustrates the complexity of both the legal framework and the procedural elements involved, resulting in the enormous difficulty that individuals and their legal advisors face when filing a complaint. In view of the above, we feel that the two Bills have the potential of radically altering the face of Malta’s human rights protective framework in a manner that renders it more accessible, inclusive and effective. The role of the new Commission to firmly ensure that human rights remain at the heart of law- and policy-making is fundamental to the respect and protection of the rights of all persons in Malta, particularly in a context with a very small number of NGOs acting as watch-dogs over State behaviour and activities. Yet we are extremely concerned that the Bills’ most recent versions pose a risk to these ambitious aims. Contrary to the requirements of the Paris Principles, the Commission and the Board will not be independent and impartial entities since the procedures for appointment of their members contain far too many direct connections to Government. It is our view that these connections will lead to a Commission and Board composed of members who are in some way tied to Government, thereby prejudicing the important and needed work of the two bodies. Our conclusion, therefore, is clear and inevitable: if the appointments procedures are not amended, we will have no other choice but to reject the Bills. Our mission is to promote a society where all its members are able to access and enjoy all their fundamental human rights. The two Bills contain much promise, and we applaud the Ministry for their presentation. We are keen to see the two Bills adopted in a manner that truly strengthens the protection of human rights and the equality principle, and we hope that this input will assist law- makers in achieving these aims. 1 http://aditus.org.mt/Publications/scopinginput_032014.zip 2 http://aditus.org.mt/Publications/aditussubmissionsontheequalitybill_29012016.pdf 3 Input on the proposed Human Rights & Equality Commission Act, Equality Act (November, 2019) ADITUS FOUNDATION aditus foundation is a young, independent, voluntary, non-profit and non-governmental organization established in 2011 by a group of young lawyers dedicated to ensuring human rights access in Malta. aditus’ Director is Dr. Neil Falzon, and the current board is composed of Dr. Nicola Mallia (Chairperson), Dr. Michael Camilleri and Dr. Michael Ellul Sullivan. Named for the Latin word meaning ‘access’, aditus foundation’s mission is the attentive analysis of access in Malta to human rights recognition and enjoyment. In practical terms, aditus was established to monitor, report and act on issues of fundamental human rights access for individuals and groups. aditus foundation was founded on the principles of the universality, interdependence and indivisibility of all fundamental human rights, and we strive to promote their understanding and application. Being a generic human rights NGO, we work to adopt a broad perspective for human rights in Malta, identifying themes such as discrimination and access to effective remedies. Furthermore, while focused on Malta, we work towards highlighting the regional and international implications of local obstacles to human rights access. Our main activities include the identification of priority areas, formulating advocacy strategies and working towards improvement in legal and administrative standards. This includes offering pro bono legal information and advice. We focus our advocacy work on the government of Malta yet we also address the EU institutions, the United Nations, the Council of Europe and other relevant agencies. We remain in constant communication and cooperation with governmental, intergovernmental and non-governmental entities to maintain a comprehensive approach in our activities. aditus is committed to engaging the general public in a human rights discourse that is well informed, unbiased and effective, through press statements and television and radio appearances. Further, aditus makes full use of the Internet to disseminate information, raise public awareness, gather advocacy support and establish contact with individuals and networks. We have a comprehensive website and a busy Facebook page and Twitter account. aditus is the Secretariat for the Platform of Human Rights Organisations in Malta (PHROM), Malta’s first and only national coalition of human rights NGOs. Together with being registered with the Malta Commissioner for Voluntary Organisations, aditus has affiliations and memberships with the International Detention Coalition (IDC), the Platform for International Cooperation on Undocumented Migrants (PICUM), the European Council on Refugees and Exiles (ECRE), the European Network on Statelessness and the Anna Lindh Foundation. We are founding members of the national Coalition for Choice. We are also members of the Consultative Forum of the European Asylum Support Office, and of the Fundamental Rights Platform of the European Union Agency for Fundamental Rights. 4 Input on the proposed Human Rights & Equality Commission Act, Equality Act (November, 2019) T HE H UMAN R IGHTS & E QUALITY C O MMISSION A CT Definition of “human rights” As a Member State of the European Union, Malta’s human rights framework also includes the Charter of Fundamental Rights of the European Union. This is a legally-binding instrument that, whilst complementing the European Convention on Human Rights, broadens the scope of human rights protection in some areas. A comprehensive definition of “human rights” in Malta cannot be complete without a specific reference to the Charter. Furthermore, the definition omits jurisprudence of European courts thereby omitting relevant jurisprudence of the Court of Justice of the European Union (CJEU). Recommendation Include the Charter of Fundamental Rights of the European Union and European courts’ jurisprudence in the definition of “human rights”. Definition of “person” The Act limits its definition of “person” to natural entities, thereby categorically excluding legal persons. A major implication of this choice of definition is that legal persons are not able to file complaints before the Commission, requesting the Board to ascertain whether a violation of the princ0le of equality and non-discrimination has occurred (see Article 16). Whilst it is true that traditional human rights theory has placed natural persons at the heart of human rights enjoyment, the Act cannot ignore the growing corpus of law and jurisprudence recognising that legal persons do in fact enjoy a degree of human rights freedoms and – therefore – are entitled to legal protection of those freedoms. Between 1998 and 2003, of the 3,307 judgements delivered by the European Court of Human Rights, 3.8% (126) originated from applications filed by companies or persons pursuing corporate interests. Human rights issues typically flagged by companies includes those affecting property rights, fair trial, and free expression3. In order for the Board’s complaints procedure to be as accessible and effective as possible, the Act’s