On 10 December 2014, International Human Rights Day, the Ministry for Social Dialogue, Consumer Affairs and Civil Liberties, published a White Paper entitled Towards the Establishment of the Human Rights and Equality Commission. It invited comments from the public and interested bodies upon the interesting recommendations contained therein.
The Parliamentary Ombudsman released in August a document entitled Reflections on the White Paper ‘Towards The Establishment Of The Human Rights And Equality Commission’, a positive reception of the White Paper’s suggestions. He set out concrete proposals to develop further the rationale of the White Paper to ensure that the legislation which will follow will be suitable to, and compliant with, the administrative environment in Malta so that the White Paper’s objectives are fully achieved, well planned out, institutionally coherent and implemented successfully.
The Ombudsman also partakes of the national human rights institutions in Malta and thus has a major role to play in ensuring the proper establishment of the Human Rights and Equality Commission.
Having read and pondered upon the main thrust of both the White Paper and the Ombudsman’s reflections, I unhesitatingly confess that I am in agreement with both documents which, in my view, very much complement each other. The Ombudsman’s Reflections give flesh to the White Paper’s spirit, which sets out the principles the government wants to achieve in the realm of human rights and equality law. The Ombudsman’s reflections chart out the ways and means how these principles can be concretised in practice in Malta, having due regard to extant entities which carry out duties in the realm of human rights law and equality law. That is why I consider the White Paper and the Ombudsman’s reflections complementary to each other.
The Ombudsman set out concrete proposals to develop further the rationale of the White Paper to ensure that the legislation which will follow will be suitable to, and compliant with, the administrative environment in Malta
The Ministry for Social Dialogue, Consumer Affairs and Civil Liberties has to be lauded for the well-deserved initiative it is taking in order to update Malta’s human rights and equality laws to current international and European standards. There exist gaps in the legal framework and lack of coherence in the standards adopted by the concerned institutions. I consider this government-led initiative to be an excellent step in the right direction and an inevitable consequence of the reform of the Ombudsman institution which was carried out by Parliament in 2010.
The first phase in this reform exercise of the national human rights institution in Malta saw sectoral ombudsmen being reorganised and grouped together within the Office of the Parliamentary Ombudsman under one law without, in turn, losing their respective autonomy.
In terms of the 2010 amendments to the Ombudsman Act it became possible to establish commissioners for administrative investigations within the Ombudsman institution. Indeed, under subsidiary legislation made under those amendments – the Commissioners for Administrative Investigations (Functions) Rules, 2012 (Subsidiary Legislation 385.01) – three commissioners for administrative investigations were established and appointed namely, the commissioner for education, the commissioner for environment and planning, and the commissioner for health. These amendments are flexible enough to allow the establishment in the future of other commissioners for administrative investigations.
Overall, the 2010 reform has been successful, worked out well and all commissioners are functioning autonomously and in a co-ordinated fashion within this restructured Ombudsman institution.
The second phase in the reform of the national human rights institution in Malta focuses on two aspects: equality and non-discrimination, on the one hand, and human rights on the other. As was the situation with the Ombudsman prior to the 2010 amendments to the Ombudsman Act, in so far as equality and non-discrimination are concerned, there exist today state entities which are very sectoral in nature – focusing on gender and race discrimination, disability rights and children’s rights – which do not address equality and non-discrimination in its multiplicity and within one national institution.
It is of paramount importance that these three sectoral entities are all brought within the fold of one institution – the proposed Human Rights and Equality Commission. Their remit ought to be extended in the new legislation to cover all forms of discrimination rather than allowing such an extension to take place sporadically and in a piecemeal fashion as has been unfortunately the practice in the past.
This is, in fact, what the White Paper is correctly proposing to achieve. The new legislation needs to clarify that it is without prejudice to, and is saving the powers of, extant constitutional and other legally established authorities which implement human rights law such as the Broadcasting Authority with regard to freedom of expression, the Commission for the Administration of Justice with regard to the judicial system and the Electoral Commission with regard to the right to vote.
Naturally there are other administrative authorities which, in one way or another, administer human rights law and their powers have to be reconfirmed as well. The new legislation should retain intact the powers ascribed by law to judicial and quasi-judicial bodies entrusted to provide remedies in the case of breaches of human rights law such as the Civil Court, First Hall, the Constitutional Court, the Court of Appeal and the Administrative Review Tribunal.
The Human Rights and Equality Commission should, in so far as equality and non-discrimination are concerned, have three commissioners: a commissioner for equality; a commissioner for persons with disability; and a commissioner for children. In this way, it will encompass extant entities which already satisfactorily perform duties in the realm of equality and non-discrimination.
As to the other limb of the Human Rights and Equality Commission, the Data Protection and Freedom of Information Commissioner could well be absorbed within the new commission as, after all, such officer is also dealing with personal data and access to information which both fall under its human rights mandate.
This change will ensure that all commissioners (equality commissioner, persons with disability commissioner, children’s commissioner and data protection and information commissioner) are upgraded and brought in line with the Paris/Belgrade Principles set out in the annexes to the White Paper.
It further ensures that all these commissioners – as part of the Human Rightsand Equality Commission – retain their autonomy whilst co-operating and workingin tandem.
In this sense, the Human Rights and Equality Commission would be considering human rights and equality matters froma holistic perspective and in a comprehensive manner.
It is imperative that all the entities within the Ombudsmen institution, all the proposed entities within the Human Rights and Equality Commission and other relevant stakeholders are represented in the Human Rights and Equality Commission’s board of governors so that they can better co-ordinatetheir functions.
The Human Rights and Equality Commission should be chaired by the equality commissioner and should be governed by a board of governors comprising the equality commissioner, as chairperson, and, as members, the persons with disability commissioner, the children’s commissioner and the data protection and information commissioner; the Ombudsman and the commissioners for administrative investigations for education, environment and planning, and health; a representative of the Commission for the Administration of Justice; and representatives of other stakeholders such as the University of Malta and non-governmental human rights organisations, whether purely locally established or forming part of a branch of an international or European human rights non-governmental organisation.
In this way, the new Commission willnot overlap with extant structures but contribute to complement and co-ordinate their work better.
The adoption by Parliament of these measures through legislative means will conclude the second phase in the implementation of the review of the national human rights institution in Malta.
Once these materialise Malta can start reaping their benefits to the advantage ofits population.
I thank both the Minister for Social Dialogue, Consumer Affairs and Civil Liberties for having taken this initiative to publish such a seminal document and the Ombudsman for having produced a set of exhaustive and well thought out reflections on the White Paper under review which clearly and convincingly set out the administrative and legal structures aimed at paving the way to reach the goals admirably set out in the Ministry’s White Paper.
Professor Kevin Aquilina is the Dean of the Faculty of Laws at the University of Malta.