General prohibition of discrimination

On 4 November, 2000, Protocol No 12 to the European Convention for the Protection of Human Rights and Fundamental Freedoms was adopted at Rome by the member states of the Council of Europe. This Protocol came into force on 1 April, 2005. In so far as Malta is concerned, it signed and ratified Protocol No 12 on 8 December, 2015. The Protocol came into effect with regard to Malta on 1 April, 2016.

Article 1 of Protocol No 12 contains a general prohibition of discrimination. It reads as follows:

1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.

One would have expected that once Malta ratified and is bound by this Protocol, it would have incorporated it into the European Convention Act, Chapter 319 of the Laws of Malta, once it is this law which incorporates into municipal law the said European Convention and its Protocols. This has been, consistently, past practice since the enactment of the European Convention Act in 1987.

Yet this procedure has, strangely enough, not been adopted following the ratification by Malta of Protocol No 12. Why this is so baffles me and cannot but beggar belief. This necessarily implies that whilst on the international plane Malta is bound by Protocol No 12 and Council of Europe Member States may seek redress against Malta before the European Court of Human Rights should there be an allegation of breach of this Protocol on the part of Malta, persons residing or present in Malta, including all Maltese citizens who might be discriminated by a public authority in terms of this Protocol, do not enjoy any rights before Maltese Courts to seek redress against the Government of Malta when its public authorities breach this Protocol.

Residents and persons present in Malta, therefore, are left with no choice but to bypass the Maltese legal system and petition the Strasbourg Court with all that it entails to go through such procedure. In the case of foreigners resident or present in Malta, they can request their state of nationality to espouse their claim before the European Court of Human Rights if their state is a Member State of the Council of Europe. Quite a long-winded procedure to safeguard one’s rights when one can go round the corner and knock on the door of the Maltese Courts of Justice!

On the other hand, if a person resident or present in Malta wants to enforce Article 14 of the European Convention related to discrimination, combined with any other human right and fundamental freedom recognised by the human rights convention, s/he can go directly to the Maltese competent court which hears and determines his/her case. But this procedure is inapplicable to the enforcement of the right granted by Protocol No 12 for the very simple reason that the government has, for some mystified reason known only to itself, failed to incorporate Protocol No 12 into the European Convention Act.

Hence the message which the government is passing on to its citizenry is that whilst it is affording lip service to outlawing discrimination by public authorities, it is making it extremely cumbersome for citizens to have recourse to Maltese courts to safeguard that same right. In adopting such bifurcated procedure, the government is ending up discriminating with regard to the procedure to be followed in relation to the enforcement of the discrimination provision of the European Convention on Human Rights and Fundamental Freedoms, on the one hand, and the general prohibition of discrimination Protocol No 12, on the other.

The consequence of all this is that in so far as the European Convention on Human Rights and Fundamental Freedoms and its Protocol No 12 are concerned, the government is applying two weights and two measures as to their enforcement, thereby depriving citizens and other persons resident or present in Malta from instituting court proceedings, before a Maltese competent court, to obtain a remedy for a public authority’s discriminatory measure.

One fails to understand this reasoning once Malta took the initiative to ratify Protocol No 12. So why deny the right to have it enforced in Malta? Is this tantamount to a vote of no confidence in the Maltese judiciary? Or is the government afraid to allowing the citizens to take it to court because it has already concluded that it will be losing the vast majority of cases in Malta and therefore it makes more sense to give its contesters a hard time to be dispensed instant justice?

We were indeed in such a legal quandary in April 1987 when the Labour Government at the time did not have the courage to incorporate the human rights convention into Maltese Law to render it directly enforceable in Malta. The government then adopted a more timid step to allow the Maltese to petition the Strasbourg organs and not to have their case settled more nearer to home – in Malta.

Let us hope that policy-wise we are not returning to those bygone days where the Maltese Courts were precluded from enforcing the European Convention themselves in Malta. One augurs that this glaring lacuna in the incorporation of Protocol No 12 in the European Convention Act is addressed soonest, even though incorporation of an international treaty into municipal law, normally takes place before – not months after – Malta would have been bound by the international convention.

Professor Kevin Aquilina is Dean of the Faculty of Laws at the University of Malta