Judge rules citizenship law provision anti-constitutional

The First Hall of the Civil Court, presided over by Mr Justice Lino Farrugia Sacco, yesterday declared that a provision of the Malta Citizenship Act was discriminatory on the basis of gender and was in violation of the Constitution.

The judgment was delivered in the case filed by a woman on her own behalf and on behalf of her minor son against the Attorney General, the Prime Minister, the Minister for Home Affairs, the Director of Citizenship and Expatriates, the Police Commissioner and the Principal Immigration Officer.

The woman claimed that her son had British nationality as he was born in Scotland and she was also a British national. The child was born to her from an extra-marital relationship with a Maltese national.

The mother had tried to acquire Maltese nationality for her son but had discovered that there were legal impediments resulting from discrimination between legitimate and illegitimate children in acquiring such citizenship.

She also noted that the Citizenship Act provided in section 5(2) that a person born overseas on or after August 1, 1989, was to be considered a Maltese national if on the date of his birth either of his parents was a Maltese national.

She claimed that although her son fully qualified for Maltese nationality in terms of section 5(2), he was precluded from exercising his rights as the law discriminated between persons of legitimate and illegitimate birth.

Section 17(1)(a) of the Malta Citizenship Act provided that wherever in the law a reference was made to the father of a person, such reference, in the case of persons born out of wedlock and illegitimate, was to be construed as a reference to the mother of such a person.

The mother claimed that her son was discriminated against as a result of this section of the law, and she asked the court to declare that section 17(1)(a) of the Malta Citizenship Act was null and void as it was discriminatory.

The court heard that the mother had sought advice about obtaining Maltese nationality for her son from the Malta High Commission in London. She was told that this would be possible if the name of her son's father was listed on the child's birth certificate.

She then filed proceedings against the natural father in Scotland, as a result of which the natural father was declared by the Scottish court to be the father of the child. This notwithstanding, the mother was told by the Maltese citizenship authorities that the registration of her son as a Maltese national could not take place.

In a meeting with the citizenship authorities, the mother was told that the Maltese Parliament had not intended to confer Maltese nationality on the illegitimate children of Maltese men. The mother felt this constituted discrimination against her son.

Mr Justice Farrugia Sacco noted that the mother had commenced proceedings in the local courts claiming maintenance for the son.

The medical tests carried out showed that the alleged father was indeed the biological father of the child. In February 2003, the First Hall of the Civil Court had declared that the Maltese father was the natural father of the child and that he was bound to maintain the child.

Mr Justice Farrugia Sacco ruled that the mother's action ought not to have been filed against the Prime Minister, the Police Commissioner and the Principal Immigration Officer, though it was to continue in respect of the others.

He added that it resulted, from the Citizenship Act and from the evidence produced, that although the son qualified fully as a Maltese national, as he was born after August 1, 1989 overseas to a Maltese father, he was precluded from obtaining this nationality as a result of the discrimination based on the fact that he was born out of wedlock.

This discrimination resulted from the wording of section 17(1)(a) of the law, which ruled that any references to the father of a person were, in the case of persons born out of wedlock and who were illegitimate, to be construed as a reference to the mother of such a person.

The court, after examining both local and foreign case law, declared that it was obvious that the legislator wished to protect the individual from discrimination and discriminatory treatment.

Section 45 of the Constitution stipulated that no law could contain provisions that were discriminatory. However, section 17(1)(a) of the Citizenship Act made a distinction between persons born in wedlock and others who were not, and this distinction was of sufficient importance as to deprive illegitimate persons of citizenship.

Furthermore, the discrimination in section 17(1)(a) did not only affect birth and citizenship but was also discriminatory on the basis of gender.

A difference in treatment was discriminatory, the court ruled, if it had no objective and reasonable justification.

The court added that the Maltese Parliament was so contrary to the distinction between legitimate and illegitimate children that in 2004 it had eliminated all the sections of the Civil Code that created such a distinction.

In this case the issue being discussed was the sex of the child's parents which could have consequences insofar as the child's nationality was concerned.

The court therefore concluded that section 17(1)(a) of the Malta Citizenship Act was discriminatory on the basis of gender and therefore declared it to be null and void.

The court ordered that a copy of the judgment be remitted to the Speaker of the House of Representatives.