Issue link: https://maltatoday.uberflip.com/i/1220238
10 maltatoday | WEDNESDAY • 11 MARCH 2020 OPINION THE past years have been syn- onymous with progress in the field of equality. Society had long been calling for Government to cut ties with conservative, often repressive, ideologies, and to embrace a very simple, liberat- ing concept: that each and every one of us has the right to live our personal truth, without fear of discrimination or prejudice. It would be a mistake, how- ever, to rest on our laurels and call it a day. We are well aware that for all our progress, the struggle towards a fair and equal society is far from over. We are yet to create an envi- ronment where individuals, ir- respective of identities, beliefs, or origins, are able to live their life free from discrimination. An acute awareness of this re- ality, and the will to change it, is what inspired Government to initiate a process towards a comprehensive set of laws on the right to equal treatment and non-discrimination. Final- ly, after years of intense con- sultation and drafting, Gov- ernment has produced two legislative proposals for Parlia- ment to analyse. First, the Equality Bill, which consolidates equality provi- sions, some of which are al- ready found in our laws, al- beit scattered, and ensures uniform protection to all in most spheres of public life. Second, the Human Rights and Equality Commission Bill, a proposal which sets up a na- tional human rights institution, with a strong mandate to act as a watchdog on government in the field of human rights and equality, and hear complaints related to any alleged breach of the right to equal treatment and non-discrimination. The two Bills complement each other: the former estab- lishes the principles of equality and non-discrimination, while the latter creates a formidable institution tasked with their upholding and promotion. The proposals are revolution- ary in the sense that they speak to what Government envisions for society; they are a clear tes- tament to the belief that our society should be free, equal, and just for all of us. They are also revolutionary in their comprehensive ap- proach to protecting us in all of our diversity. The Equality Bill lists a variety of protected characteristics, that is, those individual traits which make us all unique, and which deserve protection from discrimina- tion. Be it our beliefs; our sex; our race; any disability; or even our political beliefs, the Equal- ity Bill prohibits discrimina- tion on their basis. This applies throughout our everyday lives, through provisions relating to our ability to access goods or services, education, or work, among others. The Equality Bill takes on dis- crimination by clearly defin- ing what it protects, as well as what it prohibits. This is done by building on definitions al- ready found in existing Maltese law, so as to consolidate legal clarity, as well as by drawing inspiration from a variety of European Union Directives on discrimination. What is innovative in this Bill is the way it affords equal pro- tection from discrimination to all protected characteristics; in all the spheres of life it con- cerns itself with. For instance, just as a worker cannot be dis- criminated against at work be- cause of his race, an individu- al cannot be refused a service simply on the basis of his reli- gion. It is also a reasoned law, in the sense that it recognises that in some contexts, differential treatment is not only neces- sary, but required, and there- fore not discriminatory. If, for instance, an employer requires customer service workers to speak to Maltese individuals, it is reasonable to call for appli- cants able to converse in Mal- tese. This, the proposal affirms, would not be discriminatory over other languages. Legal protection is all well and good, however in practice, it would serve very little if it was not accompanied by a stur- dy enforcement mechanism which provides a just remedy to victims. Enter the Human Rights and Equality Commis- sion Bill, creating a structure empowered to hear complaints related to alleged breaches of equal treatment and non-dis- crimination. The quasi-judicial system proposed, as vetted by the Council of Europe's Ven- ice Commission, is composed of experts in the field, and, should guilt be established, has the power to impose rectifying measures, and order the pay- ment of considerable damages to the victim. The debate on these Bills has shone a light on a number of legal concepts which empower victims of discrimination. This is incredibly positive, as some of them have been part of our laws for quite a while, but were bur- ied away in obscure subsidiary laws. The concept of the shift of the burden of proof, introduced by the EU in the early 2000s, is a prime example of this. In very simple terms, this principle means that the per- son who alleges that discrimi- nation occurred must establish facts from which the presump- tion of discrimination arises, and it is then up to the accused to prove the contrary. It is known that victims of discrimination often lack the means to provide hard evi- dence to prove their case to a higher standard as usually re- quired by law, and therefore, most victims of discrimination would have no remedy availa- ble to them. For instance, a worker who has been refused a promotion on the basis of his religion would find it very hard to prove that that was the case, without documentation in hand re- garding the selection process. Therefore, the Court would require from them simply as many facts as he can present which corroborate his claim. The employer, then, with ample resources, can easily disprove that allegation by presenting a full report on the process ap- plied, if it was indeed a trans- parent process. Without this shift of the burden of proof, the worker's case would have been rejected immediately, for they would not have been able to present that documentation. I look forward to Parliament's scrutiny of these Bills, and hopefully, their eventual enact- ment as laws. If we are truly to embrace our society in all of its beautiful diversity, these pro- posals are definitely the way forward. Legal protection is all well and good, however in practice, it would serve very little if it was not accompanied by a sturdy enforcement mechanism which provides a just remedy to victims Edward Zammit Lewis Our society deserves the strongest laws on equality Edward Zammit Lewis is Minister for Justice