Drawing clear lines for equality | Charles Pace

Dr Charles Pace is senior. Visiting Lecturer, Department of Social Policy & Social Work, University of Malta

The sudden removal of the Mellieħa cross followed by its equally sudden reappearance jolted awake those Maltese who had not realised that something pretty dislodging might be at stake with the pending ‘Equality’ bills. In an excellent article on MaltaToday (9 August), Chris Vella rose up to the challenge with his own key questions and key fears about the impending changes.

Vella is active in Drachma, which supports people of various characteristics in their quest for sexual and spiritual integration. Equality laws aim to promote equality by prohibiting discrimination against people with a wide range of characteristics, while setting up the structures and rules for the fulfilment of this role.

Vella is aware of the complexity of translating this into practice. As to principles, he basically wants respect for diversity and plurality, but is afraid that that practice may either go too far or not go far enough. In such a law, what counts in the end is what it forces us to do or not to do. Where do you draw the line?

As to practice, he focuses on two areas: how far schools should restrict teachers who do not follow their ethos, and how far can conscientious objection allow different people to be treated differently.

Vella confronts the issue of what basic values should decide the balance among competing values or interests.

First, he claims, the law should be inclusive, “embracing people who are different, and have different opinions and views, subject to the very basic rule of mutual respect towards one another.”

Secondly, the law should be effective, such as where it comes to conscientious objection: “…if my ethical beliefs are by their very nature exclusive, non-embracing, racist, misogynist or homophobic/transphobic… [through] a vaguely defined conscientious objection, those same ‘protected characteristics’ would be overruled [later he says ‘nullified’]. Unless, that is, a very specific wording is adopted that clearly delineates specific scenarios where that right could be implemented.”

Thirdly, then, the laws must be clear and their interpretation predictable.

Fourthly, teaching values to students should not be at the cost of failing to inform them of other beliefs and to induce them to accept and live harmoniously with the different.

Responding in the parliamentary committee to civil society members’ alarm at the law’s vagueness and unpredictability, Minister Edward Zammit Lewis claimed that future law courts will take note of the intentions and interpretations expressed in Parliament (and in committee, one would ask?) But many questions remain hanging. Few issues of interpretation have in fact been settled.

The law has its mechanisms to settle uncertainties. If you ask me, their predictability looks like the blankest of blank cheques! A Commissioner will decide policy, helped by a commission and a consultative commission, supposedly as widely representative as possible, but whose selection process can be hijacked and monopolised. The law not only overrules all Maltese laws (and signed international conventions) except only the Constitution, but metes out crippling punishments on law-breakers.

It also allows authorities (presumably the Commissioner) to invoke ‘principles and practices’ of other countries. How can one predict which laws the Commissioner will draw out of a hat: a Swedish law here to decide what is discrimination regarding abortion? A US law there to decide how far propertied people are allowed to dominate and determine the running of political parties? A Russian one on the freedom of religion and religious symbols?

One characteristic that is protected by the law is ‘property’. As far as I know, with so many clauses clamouring for discussion, nobody has even had time to ask which minority is being protected against discrimination by including property. Is it the 1% of the population that own 49% of the world’s property? The ones who contribute massively to political campaigns? Or does it defend the right of the have-nots to have equal access to good housing, good legal representation in court and equal education? Is it up to the selected Commissioner to alone arbitrate on what this is supposed to mean? And is all jurisprudence characteristic of Maltese law now to bow out whenever the overruling authorities cite practices that are completely alien to Malta?

Another anti-equality feature of the law is its discrimination against religious schools and religious symbols. While government selects many public servants on the basis of personal trust, schools are not allowed to check whether a person teaching the Muslim or Catholic religion adheres to that religion, except in restricted cases.

Religious symbols are very quaintly, and out of the blue, said not to be illegal “if they are cultural” or if removed once a religious function is over, while the law nowhere says they are illegal in the first place! Political monuments and symbols, by contrast, are free of restriction.

Back to the drawing board, then! What lines should be drawn?

First, the arbitrary invoking of laws alien to Malta must be removed from the Bill: otherwise the law’s predictability will be near zero.

Second, as Vella suggests, applicable scenarios or conditions should be clearly declared, giving the law the predictability required by elementary justice and democracy. Such as:

- Religions are free to decide access to their religious services, such as the sacraments, according to their own criteria. The law says this, but immediately after arguably pulls the carpet from under this clause by saying that all services should be given to anybody notwithstanding, not making clear that the exception of religious services still applies. The distinction of religious and thus protected services should be defined clearly in the law!

- Religious associations and all civil society associations to be free to restrict the use of their premises and resources for activities that conform to their ethos.

- Conscientious objection not to be allowed when giving a non-religious and non-protected service to a person or group having one of the protected characteristics, but conscientious objection is allowed where the service involves the promotion of conduct that is contrary to one’s religious or moral convictions. Thus, a photographer or confectioner may not refuse to offer service for a same-sex marriage, but is allowed to invoke conscientious objection against displaying such a cake or photos in its shop-window or website.

- Schools have the right to expect a teacher of a religion to be an adherent to that religion. Schools have the right to select employees that promote their ethos. However, the exercise of this right is subject to proportionality. It is strongest for those whose position in the school involves a strong role in ethos promotion, in view of leadership position or of the role of the subject taught in promoting this ethos.

- Christian schools should, on their own initiative, declare that, while being faithful their religious ethos, they will practice and teach an inclusive ethos, that accepts differences, continuing to employ LGBT and other minorities, and respecting and leaving wide leeway as to what their employees do in their private lives that does not significantly conflict with the promotion of its ethos. The Christian practice of disapproving and not promoting or allowing the use of its resources and premises to promote religiously disapproved types of moral conduct to be accepted as part of an inclusive society, but hate speech and exclusion on the basis of social orientation as such to be against the law. The authorities should declare their acknowledgement and expectation of such practice.

- No particular restrictions apply to religious symbols, just as none apply to political, philosophical and ideological symbols.

- Benchmarks should make sure the Bill’s frighteningly crippling fines are not applied in a draconian, unpredictable or discriminatory manner.