Equality board's powers would undermine Constitution - Council of Europe

Courts should have primary jurisdiction over human rights abuse cases

The Council of Europe’s democracy through law commission has raised concerns about a proposed equality board created by the government. Photo:

The Council of Europe’s democracy through law commission has raised concerns about a proposed equality board created by the government. Photo:

A proposed law granting judicial powers to a human rights and equality board required “serious improvement”, according to the Council of Europe’s Commission for Democracy Through Law.

The board will have the ability to investigate complaints and make binding orders, including awards of up to €10,000 in damages to victims of discrimination and abuses of human rights.

In an opinion given to the Maltese government, the commission warned the proposed body could render “meaningless” a constitutional provision granting the Civil Court and Constitutional Court “original jurisdiction” over human rights disputes.

The board’s chairman, who would also head a proposed human rights and equality commission, would have the power to enter and inspect private premises – except for private homes – without a court warrant and to inspect documents and subpoena witnesses.

The council’s commission said there was a risk the proposed board would absorb most of the judicial powers of the Civil Court.

Appeals against board decisions will be examined by the Court of Appeal, whereas appeals against Civil Court decisions are heard by the Constitutional Court.

This meant once the board started operating, very similar cases could end up in two different highest instances, which, in turn, could lead to incoherence in case law. And in any event, the parties to a dispute would have unequal rights to appeal, the commission said.

It also raised concerns about the independence of the board members, as well as their qualifications. None of them would be judges and only one was required to be a qualified lawyer, it pointed out.

The status of the board with regard to the method of the members’ appointment, remuneration, stability of tenure, early removal and discipline was far from the status enjoyed by judges, the commission said.

Board members should have the same, or similar, qualifications and experience as was required from candidates for judicial positions and should enjoy the same functional immunity as judges, it suggested.

Draft laws for appointing human rights and equality commission members could be more detailed with regard to the process of shortlisting potential candidates to prevent political appointments, the commission said.

The commission said the board should abide by basic criteria in terms of independence and impartiality, and should provide, in its proceedings, guarantees of a fair trial.

It said the board should have strong “institutional links” with the proposed human rights and equality commission.

While the human rights and equality commission would enjoy some autonomy, the Council of Europe’s democracy through law commission said the governing majority in Parliament would have decisive influence on appointing nearly all its members.

The proposed commission would be responsible for appointing four of the board’s five members and overseeing its functions.

The appointment of a commissioner to chair the human rights and equality commission and the board would be proposed by the Equality Minister and approved by a two-thirds majority in Parliament, it noted.

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