The onus of proof in cases involving violation of the Gender Equality Act, such as discrimination, would rest on the defendant, Nationalist MP Helen D'Amato observed yesterday when parliament continued to debate the gender equality bill on second reading.

The debate started on Monday. Its main purpose is to promote equality between men and women and to ban discrimination by reason of sex or family responsibilities.

Labour MP Helena Dalli, resuming her speech from Monday's sitting, insisted that this bill amounted to the barest minimum.

It said nothing about common law wives and was limited in the discrimination that it banned. For example, it said there should be no discrimination by banks and financial institutions but said nothing of insurance companies. Women were discriminated upon by insurance companies over house loans, the rental of accommodation and hire purchase agreements. Health insurance policies often covered prostate cancer, but not breast cancer.

The National Commission for the Promotion of Equality for Men and Women, which the bill would set up, should not only be a watchdog of rights, but also have effective enforcement powers to curb violation of the law.

Furthermore, there needed to be specific structures to promote gender mainstreaming and the implementation of action in favour of equality.

Unfortunately the commission would end up being the body that would formulate policy, implement it, and serve as the regulator as well!

Mrs Helen D'Amato (PN) said the government was enacting a framework of legislation to stamp out discrimination. Apart from the legislative amendments, however, the government had taken other measures to remove discrimination and promote equality. That included the introduction of career breaks, responsibility breaks, leave for fostering and adoption, reduced working hours for women, initiatives to protect pregnant women at the place of work, maternity leave for casual workers, gender mainstreaming in government departments and the compilation of statistics in a way which distinguished between men and women. The national minimum curriculum had also been updated to eliminate stereotypes.

Mrs D'Amato observed that this bill addressed the rights of wives in family-run businesses, sexual harassment, discrimination in employment and elsewhere, education and vocational guidance and discriminatory advertising.

The burden of proof in cases of alleged discrimination would fall on the defendant.

This bill was therefore far from being "quarter baked" as Mrs Dalli said on Monday. Indeed, Mrs Dalli had not said how it could be fully baked in her view.

Mrs Dalli had claimed that the preparatory work on equality legislation prepared by the Labour government had been shelved. Yet the committee members appointed by the Labour government to prepare the draft of the law had continued their work even under the present government.

Mrs D'Amato said the new commission would investigate alleged violations of this law and mediate in the cases before it, but judgment would be reserved for the courts. That was as it should be, because the purpose of this bill was to facilitate agreement between the parties concerned without the need for the judicial process. The commission could, however, assist the aggrieved to present its case before the courts or the industrial tribunal.

The commission's role, however, would also be to inquire into and give recommendations relating to equality, and monitor the implementation of national policies with respect to the promotion of equality for men and women.

The commission had to keep direct contact with bodies working on equality issues, thus giving an important voice to non-governmental organisations.

Speaking on sexual harassment, Mrs D'Amato said harassment was being made a crime. Harassment caused stress on the victims and sometimes caused them the loss of their jobs or discontinuation of their studies. Reporting sexual harassment was not easy, but the victims should stand up for their rights and trade unions, counsellors and others should join forces to fight harassment.

Labour MP Marie Louise Coleiro said she agreed with Mrs Dalli about the bill being "quarter baked" and it would be overhauled by a new Labour government. This bill was being moved solely to meet the EU's wishes and omitted huge areas which deserved inclusion.

The government's failure in gender issues was reflected by, for example, the fact that women's participation in employment was still low.

The development of gender equality in Malta went back to 1947 when a Labour government gave women the right to vote, something the PN had been against. That was followed by compulsory education, the introduction of maternity leave and the free health system.

The last Labour government had worked in areas such as the introduction of a breast screening programme but this momentum came to a halt under the present government.

It was shameful that there was not even one woman on the Malta Council for Economic and Social Development.

Ms Coleiro said that despite this bill, women would still need to go before the civil courts to uphold their rights, despite the financial hardship that would involve to many persons.

Unfortunately, this bill said nothing about widows. Nor was there a declaration of principles, including an equal opportunities policy.

Ms Coleiro said she was urging non-governmental organisations to stand up for women's rights and be heard.

Home Affairs Minister Tonio Borg traced the legislative evolution of gender equality particularly in the constitution and civil law, notably the 1993 amendments on marriage law which established equality between husband and wife.

Up to 1987, when the European Convention was adopted, even the laws could discriminate between men and women, and before the 1993 marriage law amendments, the husband was the head of the family and took all decisions.

More recently, provisions against discrimination and sexual harassment formed an important element of the new employment relations law.

Dr Borg referred to calls for positive discrimination for women in appointments to decision-making posts. He said it was already difficult enough to find suitably qualified persons for such posts. One should not discriminate between men and women. Neither should one appoint a woman to a post solely because she was a woman. One should not create an injustice in the interests of justice.

Sexual equality could not come at a stroke of a pen, but the legislative framework was essential for further action to be taken.

Dr Borg said he admired the courage of opposition speakers who had said the government had waited until the eleventh hour to align itself to EU directives on gender equality, this from an opposition which was against EU membership!

Dr Borg observed that the new equality commission could act not only after receiving complaints, but on its own initiative. When an employee claimed discrimination or harassment, the employer was obliged to draw up a report.

Employers and the heads of educational establishments were also obliged to take all reasonable measures to ensure there was no discrimination or harassment.

Dr Borg said both parties who appeared before the commissioner for the promotion of equality could agree that his/her decision was binding and executive. If they did not, the commissioner would still prepare a report with recommendations, which would no doubt hold weight when the case ended up before the courts.