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Not just about employers - Arthur Muscat

Having discarded a first attempt in 2016, officials at the Equality Ministry of Helena Dalli are having another go with amended versions of a proposed Equality Act 2018 and a Human Rights and Equality Commission Act 2018.

One can identify numerous changes from the original 2016 proposals, which were then heavily criticised by the Malta Employers’ Association.

Do the changes put the MEA’s mind at rest, since now an equitable, balanced and sound piece of legislation is being proposed? No, not at all.

The MEA is more worried than ever, as it is now evident that these ministry officials are simply unable to, or do not want to, comprehend an elementary distinction between legally valid measures and ones that are not legally valid.

The 2016 proposals, among many irregularities, attempted to create a Human Rights and Equality Commissioner authorised to identify a suspect, interrogate, investigate, accuse, prosecute, judge, condemn and punish.

The MEA then, in its own name and on behalf of all citizens, not just employers, cried foul. The objections to such a set-up were simple to understand. One cannot and should not combine an investigative and prosecution role with a judicial role.

There is a concept called impartiality that the ministry officials simply find incomprehensible. There is no understanding of the meaning of separation of powers and conflicts of interest.

As an alternative to the fallacious 2016 proposals, the ministry officials are now, in 2018, proposing a Commissioner for Human Rights and Equality who will chair an 18-member commission, which will in turn appoint a Human Rights and Equality Board.

The commission will receive complaints, from any person, which it will pass on to the board to investigate, to take decisions and to impose penalties.

The board, made up of a commissioner plus four other members, will practically function as a judicial tribunal, with extensive powers to award and inflict up to €10,000 in damages and €20,000 in penalties for non-compliance with its decisions.

This whole upheaval, of a currently very functional and EU-compliant Maltese labour legal framework, has no justification except to satisfy extremist lobbies

One guess as to who will be chairing, with a casting vote, this Human Rights and Equality Board. You’d better believe it, the board will be chaired by the same commissioner for Human Rights and Equality.

That is, the Human Rights and Equality Commissioner will appoint himself or herself as the commissioner of the Human Rights and Equality Board and so proceed, after performing an investigative role, to assume a judicial role.

This person will entertain complaints within the commission, then refer them for judicial processing, to himself or herself as the commissioner chairing the Human Rights and Equality Board.

It has taken these enlightened ministry officials two years to come up with this ridiculous pseudo-solution to the basic issue of ensuring an essential impartiality in an adjudicating body.

This is only one fundamental defect of these two 2018 Bills, and it is not the scope of this article to go into a capillary unravelling of other fallacious contradictions present in these proposals.

I cannot believe that these proposals have been vetted and sanctioned by the Attorney General’s office. 

It is incomprehensible how apparently extremist elements belonging to particular lobbies are exposing to disrepute a Ministry for Equality and a National Council for the Promotion of Equality that in truth have done so much for the promotion of women and gay rights equality and the elimination of discrimination.

In so many aspects, ironical as it may sound, these 2018 proposals are a manifest example of an abuse of the human rights of an alleged offender, chief among which is the sacrosanct right of an accused to have access to a fair, balanced and impartial adjudicating tribunal.

Then there is that notorious EU-tolerated violation of the sacrosanct right to have one’s innocence respected until guilt is proven beyond a doubt, not be treated as guilty until innocence is proven.

This whole upheaval, of a currently very functional and EU-compliant Maltese labour legal framework, has no justification except to satisfy extremist lobbies in what appears to be a vindictive streak for long enduring past injustices.

There is also a ludicrous desire of these ministry officials to project themselves as promoters of enlightened and cutting-edge civil rights legislation.

In conclusion, this is not an article on the issues of equality, discrimination and minority rights. This is an article on the existence, or not, of a genuine motivation and competence on the part of the Equality Ministry to draft laws that are equitable and just to all citizens and not particular groups or categories. 

Ulterior motives, hidden agendas, anger and arrogance can only lead to defective legislative proposals that carry the stamp of bitterness.

Arthur Muscat is vice-president of the Malta Employers’ Association.

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