Judges overturn ruling on citizenship law discrimination

The Constitutional Court yesterday overturned a first court judgment which had 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 mother in her personal capacity and on behalf of her minor son against the Attorney General, the Prime Minister, the Minister of Home Affairs, the Director of Citizenship and Expatriates, the Police Commissioner and the Principal Immigration Officer.

The mother 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 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 requested the court to declare that section 17(1)(a) of the Malta Citizenship Act was null and void as it was discriminatory. The first court 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.

The First Hall of the Civil Court had found in favour of the mother.

After examining both local and foreign case law, it 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 emanating from 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 boy'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 declared it null and void.

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

The Attorney General, the Home Affairs Minister and the Director of Citizenship and Expatriates appealed to the Constitutional Court composed of Chief Justice Vincent Degaetano, Mr Justice Joseph D. Camilleri and Mr Justice Joseph A. Filletti.

On appeal, the Constitutional Court said it was obvious that the basis of discrimination in this case was not the gender of the son nor his race, but his illegitimate status. If the woman's child had been a girl, she too would be unable to obtain Maltese citizenship.

In the case of illegitimate children, the Malta Citizenship Act ignored the citizenship of the child's father and examined only that of the mother.

Section 45 of the Constitution, which prohibited discrimination, restricted the cause of the discrimination to six specific reasons, namely race, place of origin, political opinion, colour, faith or sex.

Consequently, prohibited discrimination had to imply that difference in treatment was meted out on the basis of the sex of the person who was alleging discrimination.

In this case, the law imposed conditions that were applicable to persons according to whether they were of legitimate or of illegitimate birth.

The provisions of section 17(1)(a) of the Malta Citizenship Act applied across the board to every person, independently of their race, place of origin, political opinion, colour, faith or their sex.

As a result, the Constitutional Court ruled there had been no violation of article 45 of the Constitution.

However, as the first court had abstained from investigating whether the law complained of violated two articles of the European Convention on Human Rights, the Constitutional Court remitted the case back to the first court for a decision on the issue.